Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Party. (b) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”): (i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition; (ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9; (iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors; (iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder; (v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively; (vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances); (vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;
Appears in 1 contract
Samples: Credit Agreement (Uap Holding Corp)
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the its business or property, whether now or hereafter acquired, except (i) as otherwise permitted under Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, PROVIDED, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Borrower in a Permitted Acquisition permitted hereunder may merge with the Borrower or any wholly-owned Subsidiary of the Borrower, PROVIDED, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, PROVIDED, FURTHER, that in each case, (A) any such wholly-owned Subsidiary of the Borrower which is the surviving corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (B) the Borrower shall give the Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Person other than another Credit PartySubsidiary so merged and (D) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto or as a result thereof.
(b) Notwithstanding Borrower shall not and shall not permit any of its Subsidiaries to, amend its certificate of incorporation or by-laws (or other relevant organizational and governing documents) in any manner adverse to the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all interests of the assets of any Person (a “Target”) Agent or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Lenders.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of amalgamation, merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five or convey, sell, lease or sub-lease (5) Business Days’ prior written notice to Agent (oras lessor or sublessor), transfer or otherwise dispose of, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Party.
(b) Notwithstanding the foregoing, any Borrower one transaction or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire series of transactions, all or substantially all of the its assets of any Person (a “Target”) including its notes or operating division receivables or Capital Stock of a Target Subsidiary, whether newly issued or one hundred percent (100%) of the outstanding stock of any Target outstanding), whether now owned or cause any Target to be merged with it or liquidatedhereafter acquired, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):except:
(i) Agent any Subsidiary of the Borrower may be amalgamated or merged with or into the Borrower or any Subsidiary Guarantor, or be liquidated, wound up or dissolved, provided that in such case the Borrower or such Subsidiary Guarantor shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisitionbe the continuing Person;
(ii) such Permitted Acquisition shall only involve assets comprising a business all or those any part of the business, property or assets of a business any Subsidiary of the type engaged in by Borrowers as of the Closing Date Borrower may be conveyed, sold, leased, transferred or otherwise permitted under Section 3.9disposed of, in one transaction or a series of transactions, to the Borrower or any Subsidiary Guarantor;
(iii) in addition to clauses (i) and (ii) above, any Person may be merged with or into the Borrower or any Subsidiary of the Borrower, and the Borrower and/or Subsidiary of the Borrower may amalgamate with any such Permitted Acquisition Person, if the acquisition of the Capital Stock of such Person by the Borrower or such Subsidiary would have been permitted pursuant to Section 9.3(d), provided that:
(A) in the case of a merger with or into the Borrower, the Borrower shall be consensual the continuing Person;
(B) in the case of any other merger, if a Subsidiary is not the continuing Person, the continuing Person becomes a Subsidiary of the Borrower and complies with the provisions of Section 9.6, and
(C) no Default or Event of Default shall have been approved by the Target’s board of directorsoccurred or be continuing immediately after giving effect thereto;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, the Borrower may split its common Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;Stock; or
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or as otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of expressly permitted by this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;.
Appears in 1 contract
Samples: Credit Agreement (North American Energy Partners Inc.)
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause permit any other Covered Party to, enter into any merger or permit their Subsidiaries to directly or indirectly: consolidation without obtaining the prior written consent thereto of the Required Banks, unless (i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiariesany such merger or consolidation involving (x) the Borrower, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such the Borrower is the surviving entityentity (regardless of whether a Covered Subsidiary is involved) or be merged or consolidated with or into and (y) any other Wholly-Owned Covered Subsidiary, a Covered Subsidiary is the surviving entity (which surviving entity must be a Pledged Subsidiary if a Pledged Subsidiary is involved) and (ii) in each case, the same will not result in the occurrence of such Borrower; (iii) a Material Default or an Event of Default. The Borrower shall not, and, except in connection with a merger or consolidation permitted in the preceding sentence, shall not permit any other Covered Subsidiary to, liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of its business or property, whether now or hereafter acquired, other than to the case of Canadian Borrower and its Subsidiaries, Canadian Agent), or to any Wholly-Owned Covered Subsidiary (other than Canadian Borrower) and if involving a Pledged Subsidiary or the assets of a Borrower may liquidateCovered Subsidiary, wind-up to another Pledged Subsidiary) or dissolve itself (in connection with any sale of all or suffer any liquidation or dissolution) into such Borrower substantially all of its assets or any payment or prepayment in full or other Wholly-Owned Subsidiary monetization in full of such Borrower; its assets. Nothing in this Agreement shall limit or (iv) acquire by purchase restrict any Covered Party to sell, pledge, mortgage or otherwise all or transfer any substantial part of the business or assets of any Person other than another Credit PartyExcluded Asset, except as set forth in Sections 5.14 and 5.15.
(b) Notwithstanding the foregoingThe Borrower shall not, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved not permit any other Covered Party to, amend its articles of incorporation, bylaws, or other organizational documents such that the provisions thereof would violate Section 5. 8 or permit any action prohibited by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurredSection 5.18 or, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtednessotherwise, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) manner that would be materially adverse to the sum of all amounts payable in connection with all Permitted Acquisitions (including, Banks without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Required Banks’ consent.
Appears in 1 contract
Restriction on Fundamental Changes. (aA) The Credit Parties shall not and shall not cause or No Loan Party will nor will any Loan Party permit their any of its Subsidiaries to directly or indirectly: (i) indirectly to amend, modify or waive any term or provision of its organizational documents, including its articles of incorporationincorporation or by-laws, or any term or provision of any certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders each case in any material respect manner adverse to Agent or Lenders unless required by law; providedprovided that notwithstanding the foregoing the parties acknowledge that prior to the Effective Date (i) Borrower changed its name to "B&G Foods, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedInc."; (ii) the Subsidiary formerly known as B&G Foods, Inc. changed its name to "Roseland Distribution Company"; and (iii) Holdings changed its name to "B&G Foods Holdings Corp.", and the Lenders hereby consent to such name changes.
(B) No Loan Party will nor will any Loan Party permit any of its Subsidiaries directly or indirectly to: (i) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iiiii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iviii) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other Person, except that (w) Borrower and/or any of its Subsidiaries may consummate Permitted Acquisitions; (x) upon not less than another Credit Party.
ten (b10) Notwithstanding the foregoingBusiness Days' prior written notice to Agent and so long as no Default or Event of Default has occurred and is continuing or will result therefrom, any Borrower or a Domestic Wholly-Owned any Subsidiary thereof that is a Credit Party of Borrower may acquire by purchase or otherwise all or substantially all any substantial part of the business or assets of any Person other Subsidiary of Borrower; (a “Target”y) or operating division of a Target or one hundred percent upon not less than ten (100%10) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ Business Days prior written notice to Agent and so long as no Default or Event of such proposed Permitted AcquisitionDefault has occurred and is continuing or would result therefrom, any Subsidiary of Borrower may be merged or liquidated with or into Borrower or any other Subsidiary of Borrower so long as Borrower is the survivor of any merger or liquidation to which notice shall include it is a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) party; and (iiz) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;as provided under SUBSECTION 2.7.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any 77 liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the its business or property, whether now or hereafter acquired, except (i) as otherwise permitted under Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Borrower in a Permitted Acquisition permitted hereunder may merge with the Borrower or any wholly-owned Subsidiary of the Borrower, provided, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, provided, that in each case, (A) any such wholly-owned Subsidiary of the Borrower which is the surviving corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.20, a Subsidiary Pledge Agreement, (B) the Borrower shall give the Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Person other than another Credit PartySubsidiary so merged and (D) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto or as a result thereof.
(b) Notwithstanding Borrower shall not and shall not permit any of its Subsidiaries to, amend its certificate of incorporation or by-laws (or other relevant formation document) in any manner adverse to the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all interests of the assets of any Person (a “Target”) Agent or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Lenders.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Holdings and Borrower shall not and shall not cause or permit their Borrower's Subsidiaries to directly or indirectly: (ia) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; providedlaw except if such amendment, thatmodification, the Related Transactions, or waiver could not reasonably be expected to have an adverse effect on Agent or Lenders or affect in any respect any Liens in favor of Agent and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedLenders; (iib) enter into any transaction of merger or consolidation except pursuant to a Permitted Acquisition and except, upon not less than five (5) Business Days’ Days prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into any wholly-owned Subsidiary of Borrower so long as if either such Borrower (providedSubsidiary was a Guarantor prior to such merger, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borroweris a Guarantor; (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (ivd) acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person other than another Credit Party.
(b) except pursuant to a Permitted Acquisition. Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets or Stock of any Person (a “the "Target”") or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “"Permitted Acquisition”):") subject to the satisfaction of each of the following conditions:
(i) Agent shall receive at least fourteen (14) days’ 15 Business Days' prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business (a) of the type engaged in by Borrowers Borrower as of the Closing Date, (b) substantially similar to the business engaged in by Borrower as of the Closing Date or otherwise permitted (c) that transports on behalf of third parties data communications and which 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 Section 3.9this 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;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s 's board of directors;
(iv) no additional Indebtedness or Indebtedness, Guaranteed Indebtedness, Contingent Obligations or other liabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers Borrower and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (iiA) Loans made hereunder, and (B) ordinary course trade payables, accrued expenses and other Indebtedness of the Target to the extent permitted by Section 3.1 or 3.4;
(v) the sum of all amounts payable aggregate consideration in connection with any single Permitted Acquisition shall not exceed $5,000,000 and all Permitted Acquisitions shall not exceed $15,000,000 (includingin each case, without duplication, excluding up to $10,000,000 per acquisition of consideration paid in the form of Holdings Common Stock and including all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers Borrower and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively);
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, Agent will be granted Liens a first priority perfected Lien (subject to Permitted Encumbrances) in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all the assets and Stock of the assets Target in each case to the extent set forth in Section 2.7(c), 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;
(viii) concurrently with delivery of the Targetnotice referred to in clause (i) above, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) Borrower shall have been pledged 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 Borrowing Availability for the 60-day period preceding the consummation of such Permitted Acquisition would have exceeded $3,000,000 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 $3,000,000 shall continue for at least 60 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 Holdings and its Subsidiaries would have been in compliance with the financial covenants set forth in Section 4 for the four quarter period reflected in the Compliance, Pricing, and Excess Cash Certificate most recently delivered to Agent pursuant to Section 4.5(m) 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) solely in respect of any Permitted Acquisition where the total aggregate consideration exceeds $2,000,000, projections covering the 1 year period commencing on the date of such Permitted Acquisition setting forth in form and substance reasonably satisfactory to the Agent the anticipated results of operations of the Target and Holdings and its Subsidiaries (the "Acquisition Projections") based upon historical financial data for the Target of a recent date reasonably satisfactory to Agent; which Acquisition Projections shall evidence that on a pro forma basis, after giving effect to any add-backs approved by Agent, (i) EBITDA for the four quarter period immediately following such Permitted Acquisition will be at least $1 greater than if such acquisition had not occurred and (ii) Holdings and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Section 4 for the 1 year period thereafter;
(C) a certificate of the chief financial officer of Borrower to the effect that: (v) Holdings and its Subsidiaries when taken as a whole will be Solvent upon the consummation of the Permitted Acquisition; (w) the Acquisition Pro Forma fairly presents in all material respects 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 a reasonable estimate 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 Target and (z) Holdings and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a Stock purchase or merger resulting in manner similar to that which would have been conducted by a new Subsidiaryprudent purchaser of a comparable business and the results of which investigation were delivered to Agent;
(ix) at least five (5) Business Days prior to the date of such Permitted Acquisition, Agent shall have become a Guarantor received, in form and a Credit Party hereunder;substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results, copies of all environmental reports and memoranda related thereto to the extent prepared in connection with such Permitted Acquisition, and other documents reasonably requested by Agent, including those specified in Section 2.7; 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
Samples: Credit Agreement (TNS Inc)
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries (except pursuant to the Merger) to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of the property of the Borrower, or, in the case of Canadian a Subsidiary of the Borrower, the business or property of the Borrower and its SubsidiariesSubsidiaries taken as a whole, Canadian Agentwhether now or hereafter acquired; provided that any such merger or consolidation shall be permitted if (i) the Borrower shall be the continuing corporation (in the case of a merger or consolidation), any Wholly-Owned Subsidiary (or the successor, if other than Canadian the Borrower, shall be a corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Term Loan Agreement and the Notes to be performed by the Borrower, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any such merger or consolidation occurring on or after the Effective Date, the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Borrower or other obligor for the Advances and other obligations hereunder, shall be satisfied; and provided, further that any majority-owned Subsidiary of the Borrower may liquidatemerge into or convey, wind-up sell, lease or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Party.
(b) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire transfer all or substantially all of its assets to, the assets of Borrower or any Person (a “Target”) or operating division of a Target or one hundred percent (100%) other majority-owned Subsidiary of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to Borrower. Pro forma compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition 5.03 shall be consensual determined in a manner which includes appropriate adjustments to Consolidated Interest Expense and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurredConsolidated EBT, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect including, without limitation, adjustments designed to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not reflect indebtedness incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs or in contemplation of such merger or consolidation and all Permitted Acquisition Debtinterest expense for the twelve month period ending on the date of such determination in respect thereof, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior demonstrated to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all reasonable satisfaction of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Loan Parties shall will not, and will not and shall not cause or permit their respective Restricted Subsidiaries to (other than Excluded Subsidiaries) to, directly or indirectly: (iA) unless and only to the extent required by law or as would not be reasonably expected to be materially adverse to the interests of Lenders, amend, modify or waive any term or provision of its organizational documentstheir respective articles of organization, including its operating agreements, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, articles of formation or partnership agreement or operating agreement (provided that, 10 days prior notice will be delivered to Administrative Agent of any modification that results in a manner which would aversely affect Agent Loan Party, any Subsidiary of a Loan Party (other than an Excluded Subsidiary) or any entity whose equity interest is pledged by a Loan Party pursuant to the Pledge and Lenders in any material respect unless required by law; provided, that, Security Agreement opting into Article 8 of the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedUCC); (iiB) enter into consummate any transaction of merger or consolidation exceptconsolidation, upon not less than five except that (5i) Business Days’ prior written notice to Agent (or, in the case any Subsidiary of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (providedprovided that, that such Borrower is the surviving entity), (ii) any Loan Party other than Borrower may merge or consolidate with any other Loan Party other than Borrower, (iii) any Subsidiary that is not a Loan Party may merge, dissolve, liquidate or consolidate with or into any Loan Party, provided that, such Loan Party shall be merged the continuing or consolidated surviving corporation, (iv) any Restricted Subsidiary which is not a Loan Party may merge, dissolve, liquidate, consolidate with or into any other Wholly-Owned Restricted Subsidiary, (v) any Excluded Subsidiary of such Borrowermay merge, dissolve, liquidate or consolidate with or into any other Person, and (vi) any Permitted Acquisition and Investment or any other Investment or Asset Disposition permitted hereunder may be structured as merger, consolidation or amalgamation; (iiiC) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary except in connection with another transaction permitted under clause (other than Canadian BorrowerB) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower above or any other Wholly-Owned Subsidiary of such BorrowerAsset Disposition permitted under Subsection 3.7; or (ivD) acquire by purchase or otherwise all or any substantial part of the business business, assets or assets equity interests of any Person other than another Credit Party.
(b) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of in any Person (whether by stock purchase or otherwise) other than pursuant to a “Target”Permitted Acquisition and Investment or any other Investment permitted hereunder; provided that 10 days after (or such earlier date, which need not be more than 10 days prior to, as is required to maintain the perfection or priority of Administrative Agent’s security interests) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice effective date of such proposed Permitted Acquisitionmerger, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business consolidation, dissolution, liquidation, or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 amalgamation in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and case of clause (B) $50,000,000 or clause (C), such acquisition in the aggregate during case of clause (D), or such amendment, modification or waiver in the term case of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) clause (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition), Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) Borrower shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor provide notice and a Credit Party hereunder;copy thereof or the documentation relating thereto to Administrative Agent.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the its business or property, whether now or hereafter acquired, except (i) as otherwise permitted under Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or ----------- convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Borrower in a Permitted Acquisition permitted hereunder may merge with the Borrower or any wholly-owned Subsidiary of the Borrower, provided, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, provided, further, that in each case, (A) any such wholly-owned Subsidiary of the Borrower which is the surviving corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (B) ------------ the Borrower shall give the Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Person other than another Credit PartySubsidiary so merged and (D) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto or as a result thereof.
(b) Notwithstanding Borrower shall not and shall not permit any of its Subsidiaries to, amend its certificate of incorporation or by-laws (or other relevant organizational and governing documents) in any manner adverse to the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all interests of the assets of any Person (a “Target”) Agent or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Lenders.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause permit any Collateral SPV or permit their Subsidiaries to directly Collateral LLC to, enter into any merger or indirectly: consolidation without obtaining the prior written consent thereto of the Required Banks, unless (i) amend, modify in the case of any such merger or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, thatconsolidation involving (u) the Borrower, the Related TransactionsBorrower is the surviving entity, (v) iStar Xxxx Holdings LLC, iStar Xxxx Holdings LLC is the surviving entity (provided that SFI Belmont LLC and any other Collateral SPV owned by iStar Xxxx Holdings LLC, shall not be permitted to merge or consolidate with or into iStar Xxxx Holdings LLC), (w) a Collateral SPV (other than iStar Xxxx Holdings LLC), a Collateral SPV is the surviving entity, (x) a Collateral LLC, a Collateral LLC is the surviving entity, (y) a Grantor, a Grantor is the surviving entity and (z) a Guarantor, a Guarantor is the surviving entity, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into in each case, the same will not result in the occurrence of a Material Default or an Event of Default. The Borrower shall not, and shall not permit any Collateral SPV or Collateral LLC to, liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of merger transactions, all or consolidation exceptsubstantially all of its business or property, upon not less whether now or hereafter acquired, other than five (5) Business Days’ prior written notice to Agent any Collateral SPV (or, in the case of Canadian Borrower and its Subsidiariesany Collateral LLC, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into to any other Wholly-Owned Subsidiary Collateral LLC or in connection with any sale of such Borrower; (iii) liquidate, wind-up all or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case substantially all of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower assets or any payment or prepayment in full or other Wholly-Owned Subsidiary monetization in full of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Partyits assets).
(b) Notwithstanding the foregoingThe Borrower shall not, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by not permit any other Loan Party or any Pledged Collateral LLC to, amend its articles of incorporation, bylaws, or other organizational documents in any manner that would be materially adverse to the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) Banks without the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Required Banks’ consent.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties shall Borrower will not, and will not and shall not cause or permit their any of its Subsidiaries to to, directly or indirectly: (i) unless and only to the extent required by law or as would not be reasonably expected to be adverse to the interests of Lenders, amend, modify or waive any term or provision of its organizational documentsarticles of organization, including its operating agreement, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock, stock or by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case except that any Subsidiary of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into Borrower or any wholly owned Subsidiary (provided that Borrower or such Borrower (provided, that such Borrower wholly owned Subsidiary is the surviving entity) and except that any Permitted Acquisition or any permitted Asset Disposition may be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrowerstructured as merger; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary except in connection with another transaction permitted under clause (other than Canadian Borrowerii) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrowerabove; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person other than another Credit Party.
(b) Notwithstanding the foregoingwhether by stock purchase or otherwise), any provided, that Borrower or a Domestic Wholly-Owned any Subsidiary thereof that is a Credit Party of Borrower may acquire all or substantially all any substantial part of the business or assets of any other Person or equity interests in any Person so long as (a) no Default or Event of Default exists before or will result after giving effect to such acquisition on a “Target”pro forma basis, (b) such assets or operating division business are held in Borrower, an existing Subsidiary or a new Subsidiary that complies with Subsection 2.12, and (c) the aggregate amount of a Target assets or one hundred percent business acquired pursuant to this proviso in any fiscal year of Borrower (100%without deduction for Indebtedness assumed) does not exceed the sum of (X) 5% of Borrower’s consolidated assets for the prior fiscal year plus (Y) the excess, if any, of the amount that Borrower was permitted in the prior fiscal year to dividend or distribute pursuant to clause (i) of the outstanding stock first proviso in Subsection 3.5 over the aggregate amount of any Target or cause any Target dividends and distributions actually made by Borrower during such fiscal year pursuant to be merged with it or liquidatedclause (i) of the first proviso in Subsection 3.5, wound-up or dissolved into it subject minus (Z) the aggregate amount of Investments made pursuant to compliance with Section 3.3(I) for the following conditions fiscal year of the acquisition (in each caseeach, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: :
(i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, to the Related Transactions, and extent that any such amendmentsamendment, modification or waiver has had, or modifications required in connection therewith shall could reasonably be specifically permitted; expected to have, an adverse effect on the Lenders;
(ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ ' prior written notice to Agent Agent, (or, in the case x) any wholly-owned Domestic Subsidiary of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such any other wholly-owned Domestic Subsidiary of Borrower (providedor, that such so long as the Borrower is the surviving entitysurvivor of such merger, into Borrower, and (y) or any Subsidiary of Borrower, other than a Domestic Subsidiary, may be merged or consolidated with or into any other Wholly-Owned another Subsidiary of Borrower, other than a Domestic Subsidiary, or with a Domestic Subsidiary of Borrower so long as such Borrower; Domestic Subsidiary is the survivor of such merger and any liabilities incurred by such Domestic Subsidiary as a consequence of such merger do not result in a Default or Event of Default;
(iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (); or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or
(iv) acquire by purchase or otherwise the Stock or all or any substantial part of the business or assets of any other Person other than another Credit Partyexcept as set forth in paragraph (b) below.
(b) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party of Borrower may acquire all or substantially all of the assets or Stock of any Person (a “the "Target”") or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “"Permitted Acquisition”):") subject to the satisfaction of each of the following conditions:
(i) Agent shall receive at least fourteen (14) days’ 30 Business Days' prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) (x) if such Permitted Acquisition is being made by Borrower or a Domestic Subsidiary of Borrower, such Permitted Acquisition shall only involve assets located in the United States of America or the United States of America and Canada so long as a majority of the assets are located in the United States of America and, if Stock is being acquired, shall only involve a Target that, upon acquisition of its Stock, would become a Domestic Subsidiary and (y) shall only involve assets comprising a business business, or those assets of a business business, of the type engaged in by Borrowers Borrower as of the Closing Date date hereof, and which business would not subject Agent or otherwise permitted any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under Section 3.9this 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;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s 's board of directors;
(iv) no additional Indebtedness or Indebtedness, Guaranteed Indebtedness, Contingent Obligations or other liabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers Borrower and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (iiA) Loans made hereunderhereunder and (B) ordinary course trade payables, accrued expenses and unsecured Indebtedness 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;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, including all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers Borrower and Target) shall not exceed (1) $100,000,000 in 15,000,000 and the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year portion thereof allocable to goodwill and (B) $50,000,000 in the aggregate intangible assets for all such Permitted Acquisitions during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectivelyhereof shall not exceed $15,000,000;
(vi) 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);
(viiviii) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, (x) if such Permitted Acquisition is being made by Borrower or a Domestic Subsidiary of Borrower Agent will be granted Liens a first priority perfected Lien in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or (subject to Permitted Encumbrances) or, if applicable, in all or substantially all of the assets (subject to Permitted Encumbrances) and if upon acquisition thereof the Target will become a Domestic Subsidiary, the Stock of the Target, all and the acquirer and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith or (y) if upon acquisition thereof, the Target shall become a direct Subsidiary, other than a Domestic Subsidiary, of Borrower or of a Domestic Subsidiary, Agent shall be granted a first priority Lien in 65% of any Stock of the Stock of Target (acquired in a stock purchase or merger resulting in a new Subsidiary) such Permitted Acquisition and the acquirer shall have been pledged 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 (i) 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 Leverage Ratio not in excess of 3.7 to 1.0 for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Section 4.9(l) 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 the greater of (i) 50% of the Borrowing Base reflected in the Borrowing Base Certificate most recently delivered to Agent pursuant to Section 4.9(d) and (ii) $5,000,000 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 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 covenant set forth in Section 4 for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Section 4.9(l) 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 (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 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 Section 4 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 Stock purchase 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 merger resulting in a new Subsidiary) 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 2.6;
(xi) in the event that such Permitted Acquisition involves the acquisition of Stock of the Target, Borrower or the applicable Subsidiary of Borrower shall have acquired all issued and outstanding shares of Stock of the Target, other than, where applicable, any directors' qualifying shares, 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, Inventory and Real Estate of the Target shall not be included in Eligible Accounts, Eligible Inventory or Eligible Real Estate unless such Accounts, Inventory and Real Estate have become owned by Borrower or a Guarantor Domestic Subsidiary that shall have become, with the prior written consent of the Requisite Lenders and pursuant to such amendments to this Agreement and the other Loan Documents as Agent shall have requested, a Credit Party "borrower" hereunder;, and unless the Agent shall have given its prior written consent thereto.
Appears in 1 contract
Samples: Credit Agreement (Telex Communications International LTD)
Restriction on Fundamental Changes. (a) The Credit Parties Holdings and Borrower shall not and shall not cause or permit their Borrower’s Subsidiaries to directly or indirectly: (ia) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; providedlaw except if such amendment, thatmodification, the Related Transactions, or waiver could not reasonably be expected to have an adverse effect on Agent or Lenders or affect in any respect any Liens in favor of Agent and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedLenders; (iib) enter into any transaction of merger or consolidation exceptexcept (i) pursuant to a Permitted Acquisition, or (ii) upon not less than five (5) Business Days’ Days prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into any wholly-owned Subsidiary of Borrower so long as if either such Borrower (providedSubsidiary was a Guarantor prior to such merger, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borroweris a Guarantor; (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (ivd) acquire by purchase or otherwise all or any substantial part of the business or assets of of, or a business line, unit or division of, any other Person (as used herein, an “Acquisition” and such other than another Credit Party.
(bPerson, the “Target”) except pursuant to a Permitted Acquisition or any Investment permitted under Section 3.3(p). Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party its Subsidiaries may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions make an Acquisition (in each case, a “Permitted Acquisition”):) subject to the satisfaction of each of the following conditions or waiver thereof by the Requisite Lenders:
(i) Agent shall receive at least fourteen (14) days15 Business Days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business (a) of the type engaged in by Borrowers Borrower and its Subsidiaries as of the Closing Date, (b) substantially similar to the business engaged in by Borrower and its Subsidiaries as of the Closing Date or otherwise permitted (c) that transports on behalf of third parties data communications and which 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 Section 3.9this 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;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Indebtedness, Guaranteed Indebtedness, Contingent Obligations or other liabilities other than Purchase Money Indebtedness permitted pursuant to Section 3.1(e)(iii) shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers Borrower and Target after giving effect to such Permitted Acquisition, except (iA) industrial revenue bondsLoans made hereunder, pollution control bonds (B) ordinary course trade payables, accrued expenses and other taxIndebtedness of the Target to the extent permitted by Section 3.1 (other than Section 3.1(i)) or 3.4 and (C) customary earn-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely out obligations owing by Fixtures, Equipment and/or Real Estate and Holdings or any accessions thereto or proceeds thereof and related property, and not Subsidiary of Holdings incurred in anticipation of connection with such Acquisition provided that such obligations constitute Subordinated Debt and shall contain such other terms and conditions reasonably satisfactory to Agent;
(A) both immediately before or after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower is in compliance with the financial covenants set forth in Sections 4.2 and 4.3, (B) after giving effect to such Permitted Acquisition (“and any Advances funded or other amounts expended in connection therewith) the Borrower will have Required Availability of not less than $15,000,000, and (C) (1) if either before or after giving effect to the proposed Permitted Acquisition Debt”) on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio greater than 2.5 to 1.0, the aggregate consideration (excluding up to $150,000,000 per acquisition of consideration paid in the form of Holdings Common Stock and (ii) Loans made hereunder;
(v) the sum of including all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers Borrower and Target) shall not exceed (1I) in connection with any single Permitted Acquisition, $100,000,000 minus any Investments made pursuant to Section 3.3(p) in connection with the aggregate per year consummation of such Acquisition; and (II) in connection with all Permitted Acquisitions since the Closing Date, $200,000,000 minus any Investments made pursuant to Section 3.3(p) in connection with the consummation of Acquisitions since the Closing Date, or (2) more if both before and after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio equal to or less than 2.5 to 1.0, the aggregate consideration (A) excluding up to $25,000,000 200,000,000 per acquisition of consideration paid in the aggregate per year form of Holdings Common Stock and 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 (I) in connection with any single Permitted Acquisition, $200,000,000 minus any Investments made pursuant to Section 3.3(p) in connection with the consummation of such Acquisition; and (BII) in connection with all Permitted Acquisitions since the Closing Date, $50,000,000 350,000,000 minus any Investments made pursuant to Section 3.3(p) in connection with the aggregate during consummation of Acquisitions since the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;Closing Date.
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, Agent will be granted Liens a first priority perfected Lien (to the extent required by the Collateral Documents and subject to Permitted Encumbrances) in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all the assets and Stock of the assets Target as and to the extent required by Section 2.7(c), 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;
(viii) concurrently with delivery of the Targetnotice referred to in clause (i) 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, 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 Holdings and its Subsidiaries would have been in compliance with the financial covenants set forth in Section 4 for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to Section 4.4(l) 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) solely in respect of any Permitted Acquisition where the total aggregate consideration exceeds $10,000,000, projections covering the 1 year period commencing on the date of such Permitted Acquisition setting forth in form and substance reasonably satisfactory to Agent the anticipated results of operations of the Stock Target and Holdings and its Subsidiaries (the “Acquisition Projections”) based upon historical financial data for the Target of a recent date reasonably satisfactory to Agent; which Acquisition Projections shall evidence that on a pro forma basis, after giving effect to any add-backs approved by Agent, Holdings and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Section 4 for the 1 year period thereafter;
(C) a certificate of the chief financial officer (or another officer acceptable to Agent) of Borrower to the effect that: (v) Holdings and its Subsidiaries when taken as a whole will be Solvent upon the consummation of the Permitted Acquisition; (w) the Acquisition Pro Forma fairly presents in all material respects 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 a reasonable estimate 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 Target and (z) Holdings and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a stock purchase 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;
(ix) solely in respect of any Permitted Acquisition where the total aggregate consideration exceeds $50,000,000 ((A) excluding (I) if either before or merger resulting after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio greater than 2.5 to 1.0, up to $150,000,000 of consideration paid in the form of Holdings Common Stock, and (II) if both before and after giving effect to the proposed Permitted Acquisition on a new SubsidiaryPro Forma Basis, Borrower has a pro forma Leverage Ratio equal to or less than 2.5 to 1.0, up to $200,000,000 of consideration paid in the form of Holdings Common Stock and (B) 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), EBITDA (calculated with respect to the Target) of the Target for the four quarter period immediately preceding such Permitted Acquisition shall have been pledged at least $1;
(x) at least five (5) Business Days 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 Target related agreements and instruments, and all opinions, certificates, lien search results, copies of all environmental reports and memoranda related thereto to the extent prepared in connection with such Permitted Acquisition, and other documents reasonably requested by Agent, including those specified in Section 2.7; and
(in a Stock purchase xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or merger resulting in a new Subsidiary) shall have become a Guarantor Event of Default has occurred and a Credit Party hereunder;is continuing.
Appears in 1 contract
Samples: Credit Agreement (TNS Inc)
Restriction on Fundamental Changes. Except as otherwise expressly ---------------------------------- permitted under this Loan Agreement (aor with the prior written consent of Lender):
(A) The Credit Parties No Primary Borrower Party shall, or shall not and shall not cause or permit their Subsidiaries to directly or indirectly: any other Person to, (i) amend, modify or waive any term or provision of its organizational documentssuch Primary Borrower Party's partnership agreement, including its certificate of limited partnership, articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement articles of organization, operating agreement, or operating agreement in a manner which would aversely affect Agent and Lenders in other organizational documents relating to any of the representations, warranties or covenants of Article IX of this Loan Agreement or this Section 5.20 or any other material respect term or provision of such Primary Borrower Party's organizational documents unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself such Primary Borrower Party.
(B) No Primary Borrower Party shall, nor permit or suffer any liquidation other Person on its behalf, to (i) issue, sell, assign, pledge, convey, dispose or dissolution) exceptotherwise encumber any stock, upon not less than five (5) Business Days’ prior written notice to Agent (ormembership interest, partnership interest, or other equity or beneficial interest in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or (ii) grant any options, warrants, purchase rights or other Wholly-Owned Subsidiary of such Borrower; similar agreements or understandings with respect thereto.
(ivC) No Primary Borrower Party shall acquire by purchase or otherwise all or any substantial part of the business or assets of, or stock or other evidence of beneficial ownership of, any Person (other than another Credit Party.
(b) Member's membership interest in Borrower). Notwithstanding the foregoing, so long as no Event of Default has occurred and is continuing hereunder, Borrower may exercise its option to purchase Lessee's personal property at any Borrower Property upon the expiration or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all termination of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged Master Lease with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect respect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens Property in accordance with Section 2.11 in substantially all 37.2 of the assets acquired pursuant thereto Master Lease; provided, however, that Borrower's right to purchase any such personal property may be subject to the prior delivery to Lender of a Nondisqualification Opinion if reasonably required by Lender. In connection with any such acquisition of personal property by Borrower, Borrower will execute, acknowledge and deliver to Lender any and all security agreements, mortgages, assignments, UCC financing statements, transfers and assurances as Lender shall reasonably require for the better creation, attachment, or perfection of security interests in all or substantially all of and to such personal property intended to be granted to Lender hereunder and under the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Mortgages.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amendMojave to, modify or waive any term or provision of change its organizational documentsname, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or enter into any other Wholly-Owned Subsidiary reorganization or recapitalization of such Borrower; (iii) its Debt in connection with a troubled debt restructuring, or liquidate, wind-up wind up, or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (oror convey, sell, assign, lease, transfer, or otherwise dispose of, in the case one transaction or a series of Canadian transactions, all or substantially all of its Assets, whether now owned or hereafter acquired, and Borrower shall not, and shall not permit its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) to acquire by purchase or otherwise all or substantially all of the business, Assets of, or stock or other evidence of beneficial ownership of, any substantial Person, except:
(a) any Specified Subsidiary may be merged or consolidated with or into Borrower or any Specified Subsidiary or be liquidated, wound up, or dissolved, or all or any part of the business its business, property, or assets may be conveyed, sold, assigned, leased, transferred, or otherwise disposed of, in one transaction or a series of transactions, to Borrower or any Person other than another Credit Party.Specified S u b sidiary; provided, however, that in the case of its merger or consolidation, Borrower shall give prior written notice to Agent thereof and cause any such Specified Subsidiary to comply with Section 5.11 hereof to effect and continue the transactions contemplated by this Agreement and the Loan Documents;
(b) Notwithstanding Borrower and its Subsidiaries may make any Investment permitted under Section 6.3 of this Agreement;
(c) Borrower and its Subsidiaries may sell or otherwise dispose of Assets in accordance with the foregoingprovisions of Section 6.9 of this Agreement;
(d) upon thirty (30) days prior written notice to Agent, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party Mojave may acquire all or substantially all of the assets of any Person change its name;
(a “Target”e) or operating division of a Target or one hundred percent upon ten (100%10) of the outstanding stock of any Target or cause any Target days prior written notice to be merged with it or liquidatedAgent, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business any of the type engaged in by Borrowers as Specified Subsidiaries may merge with and into any of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurredother Specified Subsidiaries, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;any of Borrower's Subsidiaries, other than S p e cified Subsidiaries, may merge with and into any of Borrower's Subsidiaries, other than Specified Subsidiaries; and
(vf) the sum so long as no Event of all amounts payable in connection with all Default or Unmatured Event of Default has occurred and is continuing and so long as no Event of Default or Unmatured Event of Default would result therefrom, Borrower and its Subsidiaries may make and own Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Acquisitions.
Appears in 1 contract
Samples: Credit Agreement (Southdown Inc)
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor EOPT shall enter into any merger or consolidation without obtaining the prior written consent thereto in writing of the Majority Banks, which consent shall not and shall not cause be unreasonably withheld, conditioned or permit their Subsidiaries to directly or indirectly: delayed, unless (i) amend, modify the Borrower or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower EOPT is the surviving entity, (ii) the entity which is merged into Borrower or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; EOPT is predominantly in the commercial real estate business, (iii) the creditworthiness of the surviving entity’s long term unsecured debt or implied senior debt, as applicable, is not lower than Borrower’s or EOPT’s creditworthiness two months immediately preceding such merger, and (iv) the then fair market value of the assets of the entity which is merged into the Borrower or EOPT is less than twenty-five percent (25%) of the Borrower’s or EOPT’s then Total Asset Value following such merger. Neither the Borrower nor EOPT shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness. Notwithstanding anything in this Agreement to the contrary, the parties hereto hereby agree that the Majority Banks shall be deemed to have approved the terms of the Xxxxxxx Merger set forth in the Agreement and Plan of Merger, dated February 22, 2001, by and among Borrower, EOPT and Xxxxxxx Properties.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks’ consent, which shall not be unreasonably withheld. Without limitation of the foregoing, any Borrower or no Person shall be admitted as a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all general partner of the assets Borrower other than EOPT. EOPT shall not amend its declaration of trust, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks’ consent, which shall not be unreasonably withheld. The Borrower shall not make any “in-kind” transfer of any Person (a “Target”of its property or assets to any of its constituent partners if such transfer would result in an Event of Default under Section 6.1(b) or operating division by reason of a Target or one hundred percent (100%) breach of the outstanding stock provisions of Section 5.8.
(c) Subject to the provisions of clause (b) above, the Borrower shall deliver to Administrative Agent copies of all amendments to its agreement of limited partnership or to EOPT’s declaration of trust, by-laws, or other organizational documents no less than ten (10) days after the effective date of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;amendment.
Appears in 1 contract
Restriction on Fundamental Changes. The Borrower will not, nor will the Borrower permit any of its Subsidiaries directly or indirectly to, (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating members' agreement except in a manner which that would aversely affect Agent not conflict with any provision of any Loan Document and Lenders would not be adverse in any material respect to Lenders, unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (iib) enter into any transaction of merger or consolidation exceptexcept (i) to consummate a Permitted Acquisition, (ii) upon not less than five (5) Business Days’ Days prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Administrative Agent), any Wholly-Owned Subsidiary Guarantor (other than Canadian BorrowerXxxxxx Holding Co.) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into another Subsidiary Guarantor (other than Xxxxxx Holding Co.), and (iii) the Borrower and its Subsidiaries may enter into an agreement to effect any merger or consolidation, the closing of which is conditioned upon the payment in full in cash of all of the Obligations (other Wholly-Owned Subsidiary than contingent indemnification obligations to the extent no unsatisfied claim giving rise thereto has been asserted) and the termination of such Borrowerthe Revolving Loan Commitment; (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned except if it is permitted by CLAUSE (b) or (i) to the extent such Subsidiary is dormant, (other than Canadian Borrowerii) of a Borrower may liquidateto the extent such dissolution, wind-up or dissolve itself liquidation will not have a Material Adverse Effect, or (or suffer any liquidation or dissolutioniii) into such Borrower or any other Wholly-Owned Subsidiary of such Borrowerthe Administrative Agent shall have consented thereto; or (ivd) except for Permitted Acquisitions, acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit PartyPerson.
(b) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or any material part of its business or property, whether now or hereafter acquired, except as otherwise permitted under the Existing Senior Notes, the Existing Convertible Notes, and the Revolving Credit Notes in the forms thereof in effect on the Closing Date; provided that the Borrower shall not, and shall not permit any of its Subsidiaries to, take any action pursuant to this Section 6.1(a) except, upon not less than five (5) Business Days’ without the prior written notice to Agent consent of Lender.
(orb) The Borrower shall not, in the case and shall not permit any of Canadian Borrower and its SubsidiariesSubsidiaries to, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (ivi) acquire by purchase or otherwise all any property or assets of, or stock or other evidence of beneficial ownership of, any substantial part Person, except purchases of inventory, equipment, materials and supplies in the ordinary course of Borrower's or such Subsidiary's business, (ii) create any Subsidiary without the written consent of Lender; provided that such consent shall not be unreasonably withheld, and provided further that such consent, or refusal to grant such consent, as the case may be, must be communicated to Borrower within five Business Days of the business relevant request by Borrower, or assets of (iii) enter into any Person other than another Credit Partypartnership or joint venture.
(bc) Notwithstanding the foregoingThe Borrower shall not, and shall not permit any Borrower of its Subsidiaries to, directly or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidatedindirectly, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen make any dividend or other distribution of any kind whatsoever on the Common Stock of the Borrower (14including without limitation any distribution paid exclusively in Common Stock), or make any Restricted Payment (as such term is defined in the Existing Senior Note Indenture) days’ prior written notice except as permitted by Section 4.13 of such proposed Permitted Acquisitionthe Existing Senior Note Indenture, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business issue to any holders of its Common Stock any rights, options or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;warrants entitling the
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Parent nor the Company shall, nor shall not and shall not cause or they permit any of their respective Subsidiaries to directly or indirectly: (i) amendto, modify or waive merge with any term or provision of its organizational documentsPerson, including its articles of incorporationconsolidate with any Person, certificates of designations pertaining to preferred stockdissolve, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of the business Stock or assets Stock Equivalents of any Person other than another Credit Party.
(b) Notwithstanding the foregoingPerson, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets constituting a business, division, branch or other unit of operation or trademark of any Person, enter into any joint venture or partnership with any Person, or acquire or create any Subsidiary, except that:
(a) any Warnaco Entity may merge into or consolidate with any Loan Party; provided, however, that, in the case of any such merger or consolidation, the Person formed by such merger or consolidation shall be a Loan Party;
(b) any Warnaco Entity that is not a “Target”Loan Party may merger into or consolidate with any other Warnaco Entity that is not a Loan Party; provided, however, that, in the case of any such merger or consolidation, the Person formed by such merger or consolidation shall be a Wholly Owned Subsidiary of the Parent;
(c) or operating division any Warnaco Entity may form a new Wholly Owned Subsidiary; provided, however, that, in case of any such formation, the Subsidiary formed shall be an indirect Wholly Owned Subsidiary of the Parent, and, in the case of a Target Domestic Subsidiary, shall become a Loan Party;
(d) any Warnaco Entity which is inactive or one hundred percent dormant (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
meaning that (i) Agent shall receive at least fourteen (14) days’ prior written notice on the date of such proposed Permitted Acquisitiondetermination and on a consolidated basis with its Subsidiaries, which notice shall include a reasonably detailed description it has assets with an aggregate Fair Market Value of such proposed Permitted Acquisition;
less than $500,000 and/or (ii) such Permitted Acquisition Subsidiary is listed on Schedule 1107 hereof (Scheduled Dissolutions)) may be dissolved, provided that if such Warnaco Entity is a Loan Party, all assets distributed upon dissolution shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;be distributed to another Loan Party; and
(iiie) such any Warnaco Entity may consummate a Permitted Acquisition shall be consensual Acquisition; provided, however, that in each case under this Section 1107 both before and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target immediately after giving effect to such Permitted Acquisitionthereto, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto no Default or proceeds thereof and related property, and not incurred in anticipation Event of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) Default shall have been pledged to Agent, occurred and Target (in a Stock purchase be continuing or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;would result therefrom.
Appears in 1 contract
Samples: Indenture (Warnaco Group Inc /De/)
Restriction on Fundamental Changes. (a) The Credit Parties Asset Sales and Primary ----------------------------------------------------------- Acquisitions. ---- Company shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsRestricted Subsidiaries to, including alter the corporate, capital or legal structure of Company or any of its articles of incorporationRestricted Subsidiaries, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five or convey, sell, lease or sub-lease (5) Business Days’ prior written notice to Agent (oras lessor or sublessor), transfer or otherwise dispose of, in the case one transaction or a series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower all or any other Wholly-Owned Subsidiary part of such Borrower; its business, property or (iv) assets, whether now owned or hereafter acquired, or acquire by purchase or otherwise all or substantially all the business, property or fixed assets of, or stock or other evidence of beneficial ownership of, any substantial part Person or any division or line of the business or assets of any Person other than another Credit Party.
Person, except: (bi) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Restricted Subsidiary thereof that is a Credit Party of Company may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or into Company or any wholly-owned Subsidiary Guarantor, or be liquidated, wound-wound up or dissolved into it subject dissolved, or all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to compliance with Company or any wholly-owned Subsidiary Guarantor; provided that, in the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice case of such proposed Permitted Acquisitiona merger, which notice Company or such -------- wholly-owned Subsidiary Guarantor shall include a reasonably detailed description of such proposed Permitted Acquisition;
be the continuing or surviving corporation; (ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise Company and its Restricted Subsidiaries may make Consolidated Capital Expenditures permitted under Section 3.9;
subsection 7.8; (iii) such Permitted Acquisition shall be consensual Company and shall have been approved by its Restricted Subsidiaries may dispose of obsolete, worn out or surplus property in the Target’s board ordinary course of directors;
business; (iv) no additional Indebtedness Company and its Restricted Subsidiaries may sell or Contingent Obligations otherwise dispose of assets in transactions that do not constitute Asset Sales; provided that the -------- consideration received for such assets shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect in an amount at least equal to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
the fair market value thereof; (v) Company and its Restricted Subsidiaries may make Asset Sales of the sum Assets Held for Sale or Development; provided that the consideration received -------- for such assets shall be in an amount at least equal to the fair market value thereof; and (vi) Company and its Restricted Subsidiaries may make Asset Sales of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or Las Vegas Facility, and (2) more than other assets having an aggregate fair market value not in excess of $40,000,000; provided that (Aw) $25,000,000 the consideration received for -------- such assets shall be in an amount at least equal to the fair market value thereof; (x) the consideration received for such assets shall be in the aggregate per year form of Cash and/or promissory notes, which notes shall be pledged to Administrative Agent pursuant to the applicable Collateral Documents; (y) with respect to an Asset Sale involving the Las Vegas Facility, the Net Asset Sale Proceeds of such Asset Sale shall be applied as required by subsection 2.4B(iii)(d); and (Bz) $50,000,000 in with respect to all other Asset Sales permitted under this subsection 7.7(vi), the aggregate during the term Net Asset Sale Proceeds of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition Asset Sales shall be free and clear of all Liens (other than Permitted Encumbrancesapplied as required by subsection 2.4B(iii)(a);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;. 7.8
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor General Partner shall not and shall not cause enter into any merger or permit their Subsidiaries to directly or indirectlyconsolidation without obtaining the prior written consent thereto in writing of the Required Banks, unless the following criteria are met: (i) amend, modify the Borrower or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, General Partner is the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedsurviving entity; (ii) enter the entity which is merged into any transaction Borrower or General Partner is predominantly in the commercial real estate business; (iii) the creditworthiness of merger the surviving entity's long term unsecured debt or consolidation exceptimplied senior debt, upon as applicable, is either (A) Investment Grade or (B) if not less Investment Grade, not lower than five Borrower's or General Partner's creditworthiness two months immediately preceding such merger; and (5iv) Business Days’ prior written notice to Agent (or, in the case of Canadian any merger where the then fair market value of the assets of the entity which is merged into the Borrower and its Subsidiaries, Canadian Agent), any Whollyor General Partner is more than twenty-Owned Subsidiary five percent (other than Canadian Borrower25%) of a the Borrower's or General Partner's then Total Asset Value following such merger, the consent of the Required Banks has been obtained, which consent shall not be unreasonably withheld, conditioned or delayed. Neither the Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) nor General Partner shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Required Banks' consent. Without limitation of the foregoing, any Borrower or no Person shall be admitted as a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all general partner of the assets Borrower other than General Partner. General Partner shall not amend its articles of incorporation, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Required Banks' consent. No Qualified Borrower shall amend its organizational documents in any manner that would have a Material Adverse Effect without the Required Banks' consent. The Borrower shall not make any "in-kind" transfer of any Person (a “Target”of its property or assets to any of its constituent partners if such transfer would result in an Event of Default under Section 6.1(b) or operating division by reason of a Target or one hundred percent (100%) breach of the outstanding stock provisions of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;5.8.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties shall Borrower will not and shall will not cause or permit their any of its Restricted Subsidiaries to directly or indirectlyindirectly to: (i) unless and only to the extent required by law, amend, modify or waive any term or provision of its organizational documentsarticles of organization, including its partnership Credit Agreement/US Unwired Inc. agreement, operating agreement, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock, stock or by-laws, partnership agreement or operating agreement provided that in a manner which would aversely affect Agent connection with the IWO Acquisition, Borrower may amend its articles of incorporation and Lenders bylaws as described in any material respect unless required by lawthe Draft S-4; and provided, thatfurther, that Borrower may amend its articles of incorporation and bylaws to implement certain anti-takeover provisions as described in the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedDraft S-4; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case except any Subsidiary of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrowerthe Unrestricted Subsidiaries or any of their Subsidiaries) of a Borrower may be merged with or into such Borrower or any wholly-owned Subsidiary of Borrower (providedexcluding the Unrestricted Subsidiaries or any of their Subsidiaries), provided that Borrower or such wholly-owned Subsidiary of Borrower (excluding the Unrestricted Subsidiaries or any of their Subsidiaries) is the surviving entity) or be merged or consolidated , and except GA PCS Acquisition Merger Subsidiary may merge with or into any other Wholly-Owned GA PCS, with GA PCS as the surviving entity, to consummate the GA PCS Acquisition and IWO Acquisition Merger Subsidiary of such Borrowermay merge with IWO, with IWO as the surviving entity, to consummate the IWO Acquisition; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Party.
(b) Notwithstanding the foregoingPerson; provided, any however, that Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party LA Unwired may acquire all or substantially all of consummate the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it GA PCS Acquisition subject to compliance with the following conditions (set forth in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Subsection 7.4 and may consummate the IWO Acquisition shall only involve assets comprising a business or those assets of a business of subject to the type engaged conditions set forth in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Subsection 7.5.
Appears in 1 contract
Samples: Credit Agreement (Us Unwired Inc)
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor EOPT shall enter into any merger or consolidation without obtaining the prior written consent thereto in writing of the Majority Banks, which consent shall not and shall not cause be unreasonably withheld, conditioned or permit their Subsidiaries to directly or indirectly: delayed, unless (i) amend, modify the Borrower or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower EOPT is the surviving entity, (ii) the entity which is merged into Borrower or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; EOPT is predominantly in the commercial real estate business, (iii) the creditworthiness of the surviving entity's long term unsecured debt or implied senior debt, as applicable, is not lower than Borrower's or EOPT's creditworthiness two months immediately preceding such merger, and (iv) the then fair market value of the assets of the entity which is merged into the Borrower or EOPT is less than twenty-five percent (25%) of the Borrower's or EOPT's then Total Asset Value following such merger. Neither the Borrower nor EOPT shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness. Notwithstanding anything in this Agreement to the contrary, the parties hereto hereby agree that the Majority Banks shall be deemed to have approved the terms of the Cornerstone Merger set forth in the Confidential Information Memorandum.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks' consent, which shall not be unreasonably withheld. Without limitation of the foregoing, any Borrower or no Person shall be admitted as a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all general partner of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (Borrower other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;EOPT.
Appears in 1 contract
Samples: Revolving Credit Agreement (Eop Operating LTD Partnership)
Restriction on Fundamental Changes. Other than in connection with the commencement of the Cases or as otherwise authorized by the Bankruptcy Court and consented to by the Requisite Lenders, the Parent shall not, and shall not permit any of its Restricted Subsidiaries to:
(a) The Credit Parties merge or consolidate with any Person (provided that, if at the time thereof and immediately after giving effect thereto no Event of Default or Default shall not have occurred and shall not cause or permit their Subsidiaries to directly or indirectly: be continuing (i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Restricted Subsidiary (other than Canadian a Borrower) of may merge into a Borrower may be merged with or into such Borrower (provided, that so long as such Borrower is the surviving entitycompany, (ii) any Wholly-Owned Restricted Subsidiary (other than a Borrower) may merge into or be merged or consolidated consolidate with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Restricted Subsidiary (other than Canadian a Borrower) in a transaction in which the surviving entity is a Wholly-Owned Restricted Subsidiary and no Person other than a Borrower or a Wholly-Owned Restricted Subsidiary of a Borrower may liquidatereceives any consideration (provided that if any party to any such transaction is a Loan Party, wind-up or dissolve itself the surviving entity of such transaction shall be a Loan Party), (or suffer iii) any liquidation or dissolution) into such Borrower or any other Wholly-Owned Restricted Subsidiary of such the Parent (other than a Borrower; or ) may merge with another Person in a transaction constituting an Asset Sale permitted hereunder, and (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person (other than another Credit Party.the Parent or a Borrower) may merge or consolidate with or into any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary (and, if any party to such merger or consolidation is a Borrower, is a Borrower and otherwise, if any party to such merger or consolidation is a Guarantor, is a Guarantor)); or
(b) Notwithstanding the foregoingacquire or create any Subsidiary unless, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisitionacquisition or creation, except (i) industrial revenue bonds, pollution control bonds the Parent and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, each Borrower is in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) compliance with Section 7.11 and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired Investment in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Subsidiary is permitted under Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;8.5.
Appears in 1 contract
Samples: Superpriority Senior Secured Debtor in Possession Credit Agreement (McDermott International Inc)
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely adversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Party.
(b) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen seven (147) daysBusiness Days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and ), (ii) Loans made hereunderhereunder and (iii) Indebtedness permitted by Sections 3.1(m) and (n);
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 125,000,000 in the aggregate per year or which amount shall be increased in any year by the positive amount (2if any), equal to the difference of (A) $125,000,000 minus (B) the actual amount of the sum of all amounts payable in connection with all Permitted Acquisitions during such prior year; provided that no more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, Agreement may be spent for International Acquisitions and Canadian Acquisitions collectively; provided that if the purchase price under any Permitted Acquisition is paid in full or in part by the issuance of common Stock of Holdings or incurrence of Indebtedness permitted by Sections 3.1(m) or (n), the amount of any such consideration shall be excluded from the calculation of the annual limits referenced under this clause (v);
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;
Appears in 1 contract
Samples: Credit Agreement (Uap Holding Corp)
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause permit any Collateral SPV or permit their Subsidiaries to directly Collateral LLC to, enter into any merger or indirectly: consolidation without obtaining the prior written consent thereto of the Required Banks, unless
(i) amend, modify in the case of any such merger or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, thatconsolidation involving (u) the Borrower, the Related TransactionsBorrower is the surviving entity, (v) iStar Xxxx Holdings LLC, iStar Xxxx Holdings LLC is the surviving entity (provided that iStar Xxxx LLC and any other Collateral SPV owned by iStar Xxxx Holdings LLC, shall not be permitted to merge or consolidate with or into iStar Xxxx Holdings LLC), (w) a Collateral SPV (other than iStar Xxxx Holdings LLC), a Collateral SPV is the surviving entity, (x) a Collateral LLC, a Collateral LLC is the surviving entity, (y) a Grantor, a Grantor is the surviving entity and (z) a Guarantor, a Guarantor is the surviving entity, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into in each case, the same will not result in the occurrence of a Material Default or an Event of Default. The Borrower shall not, and shall not permit any Collateral SPV or Collateral LLC to, liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of merger transactions, all or consolidation exceptsubstantially all of its business or property, upon not less whether now or hereafter acquired, other than five (5) Business Days’ prior written notice to Agent any Collateral SPV (or, in the case of Canadian Borrower and its Subsidiariesany Collateral LLC, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into to any other Wholly-Owned Subsidiary Collateral LLC or in connection with any sale of such Borrower; (iii) liquidate, wind-up all or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case substantially all of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower assets or any payment or prepayment in full or other Wholly-Owned Subsidiary monetization in full of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Partyits assets).
(b) Notwithstanding the foregoingThe Borrower shall not, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by not permit any other Loan Party or any Pledged Collateral LLC to, amend its articles of incorporation, bylaws, or other organizational documents in any manner that would be materially adverse to the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) Banks without the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Required Banks’ consent.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the its business or property, whether now or hereafter acquired, except (i) as otherwise permitted under Section 7.5, (ii) any wholly-owned Non-Summit Subsidiary of the Borrower other than the Company and any Hardee's Subsidiaries may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other wholly-owned Non-Summit Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Non-Summit Subsidiary in a Permitted Acquisition permitted hereunder other than the Company and any Hardee's Subsidiaries may merge with the Borrower or any wholly-owned Non-Summit Subsidiary of the Borrower, provided, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, (iv) with the prior written consent of the Agent and the Required Lenders, the Company and any Hardee's Subsidiaries may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other wholly-owned Non-Summit Subsidiary, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower shall be Solvent and (v) any Summit Subsidiary may merge into or convey, sell, lease or transfer all or substantially all of its assets to, any Summit Subsidiary; provided, that in each case, (A) any such wholly-owned Subsidiary of the Borrower which is the surviving corporation of any Person other than another Credit Partysuch merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and (B) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto or as a result thereof.
(b) Notwithstanding Borrower shall not and shall not permit any of its Subsidiaries to, amend its certificate of incorporation or by-laws (or other relevant formation document) in any manner adverse to the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all interests of the assets of any Person (a “Target”) Agent or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Lenders.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amendChange its name, modify or waive any term or provision change the nature of its organizational documentsbusiness from that conducted by the Loan Parties on the date of this Agreement (and other ancillary businesses reasonably related thereto), including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger merger, consolidation, reorganization, or consolidation exceptrecapitalization, upon not less than five or reclassify its partnership interests (5whether limited or general) Business Days’ prior written notice to Agent (oror membership interests, as applicable, or convey, sell, assign, lease, transfer, or otherwise dispose of, in the case one transaction or a series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the its business or assets Assets, whether now owned or hereafter acquired except:
(a) Borrower or any of any Person other than another Credit Party.its Subsidiaries may sell Assets in accordance with the provisions of Section 6.7 hereof;
(b) Notwithstanding the foregoing, any Borrower or JMP Realty Trust, Inc. may sell, exchange or otherwise offer or sell its equity interests in a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party public offering;
(c) Borrower or any of its Subsidiaries may acquire all offer or substantially all sell its membership interests to its employees so long as the aggregate voting power of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) membership interests purchased by such employees does not exceed 49% of the outstanding stock aggregate voting power of the membership interests of each of Borrower or any Target or cause any Target to be merged with it or liquidatedof its Subsidiaries, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):as applicable;
(id) Agent shall receive at least fourteen (14) days’ upon 10 days prior written notice of such proposed Permitted Acquisitionto Lender, which notice shall include a reasonably detailed description of such proposed Permitted AcquisitionBorrower or any its Subsidiaries may change its name;
(iie) Any Subsidiary of Borrower may merge into another Subsidiary, any Subsidiary may merge with a Guarantor, as long as the Guarantor is the surviving entity and Borrower and JMP Holdings, Inc. may merge, so long as (x) a Change of Control Event does not result therefrom and (y) the survivor thereof assumes Borrower’s obligations under the Loan Documents and agrees to be bound hereby and thereby; and
(f) JMP Securities or JMPAM may enter into a recapitalization with respect to its membership or other equity interests, so long as Borrower remains the managing member of such Permitted Acquisition shall only involve assets comprising Subsidiary and holds a business or those assets of a business majority of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired voting interest in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;.
Appears in 1 contract
Samples: Credit Agreement (JMP Group Inc.)
Restriction on Fundamental Changes. (a) The Credit Parties Borrower ---------------------------------- shall not and shall not cause enter into any merger or permit their Subsidiaries to directly or indirectly: consolidation, unless (i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity, (ii) or be the entity which is merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; Borrower is predominantly in the commercial real estate business, (iii) the creditworthiness of the surviving entity's long term unsecured debt or implied senior debt, as applicable, is not lower than Borrower's creditworthiness two months immediately preceding such merger and (iv) in the case of any merger where the then fair market value of the assets of the entity which is merged into the Borrower is (a) fifteen percent (15%) or more of the Borrower's then Combined Asset Value, the Lead Agent consent thereto in writing, or (b) thirty-five percent (35%) or more of the Borrower's then Combined Asset Value, the Required Banks consent thereto in writing. The Borrower shall not liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of its business or property, whether now or hereafter acquired. No new business lines shall be created without the prior written consent of the Lead Agent (which consent shall not be unreasonably withheld or delayed), excluding any Minority Holdings in which, in aggregate, Borrower's ownership interest is less than five (5) Business Days’ prior written notice 30% of Borrower's Combined Asset Value. Nothing in this Section shall be deemed to Agent (orprohibit the sale of a portion, or the leasing of all or a portion of the Real Property Assets in the case ordinary course of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Partybusiness.
(b) Notwithstanding The Borrower shall not amend its articles of incorporation, by- laws, or other organizational documents in any manner that would have a Material Adverse Effect without the foregoingLead Agent's consent, any which shall not be unreasonably withheld.
(c) The Borrower shall deliver to Lead Agent copies of all amendments to its articles of incorporation, by-laws, or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of other organizational documents no less than ten (10) days after the assets effective date of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;amendment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Trinet Corporate Realty Trust Inc)
Restriction on Fundamental Changes. (a) The Credit Parties Neither Guarantor shall not and shall not cause enter into any merger or permit their Subsidiaries to directly or indirectlyconsolidation without obtaining the prior written consent thereto in writing of the Required Banks, unless the following criteria are met: (i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, such Guarantor is the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedsurviving entity; (ii) enter the entity which is merged into any transaction such Guarantor is predominantly in the commercial real estate business; (iii) the creditworthiness of merger the surviving entity's long term unsecured debt or consolidation exceptimplied senior debt, upon as applicable, is either (A) Investment Grade or (B) if not less Investment Grade, not lower than five Guarantors' creditworthiness two months immediately preceding such merger; and (5iv) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Whollymerger where the then fair market value of the assets of the entity which is merged into such Guarantor is more than twenty-Owned Subsidiary five percent (other than Canadian Borrower25%) of a Borrower may such Guarantors' then Total Asset Value following such merger, the consent of the Required Banks has been obtained, which consent shall not be merged with unreasonably withheld, conditioned or into such Borrower (provided, that such Borrower is delayed. Neither the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) Guarantor shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), discontinue its business or convey, lease, sell, transfer or otherwise dispose of, in one transaction or series of transactions, all or substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section 5.9(a) except, upon shall be deemed to prohibit the sale or leasing of portions of the Real Property Assets in the ordinary course of business.
(b) Borrower shall not less than five (5) Business Days’ enter into any merger or consolidation without obtaining the prior written notice to Agent consent thereto in writing of the Required Banks, unless the following criteria are met: (or, i) the surviving entity is predominantly in the case commercial real estate business in Japan; (ii) the surviving entity continues to be 50% owned, directly or indirectly, by AMB LP and AMB LP continues to control such surviving entity, (iii) the surviving entity assumes all obligations of Canadian its predecessor hereunder; (iv) if such merger or consolidation affects any collateral for the Loans, substantially similar substitute collateral (in Agent's reasonable opinion) are provided as required by Section 2.13 and (v) a ratification and reaffirmation by the Guarantors of their obligations under the Guaranty is delivered to Administrative Agent. Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may shall not liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower ), discontinue its business or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase convey, lease, sell, transfer or otherwise all dispose of, in one transaction or any substantial part series of the business or assets of any Person other than another Credit Party.
(b) Notwithstanding the foregoingtransactions, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section 5.9(b) shall be deemed to prohibit the assets leasing of portions of the Tokai Property in the ordinary course of business.
(c) AMB LP shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Required Banks' consent. Without limitation of the foregoing, no Person shall be admitted as a general partner of AMB LP other than AMB Corporation. AMB Corporation shall not amend its articles of incorporation, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Required Banks' consent. Borrower shall not amend its articles of incorporation, formation documents or other organizational documents in any manner that would have a Material Adverse Effect without the Required Banks' consent. AMB LP shall not make any "in-kind" transfer of any Person (a “Target”of its property or assets to any of its constituent partners if such transfer would result in an Event of Default under Section 6.1(b) or operating division by reason of a Target or one hundred percent (100%) breach of the outstanding stock provisions of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;5.8.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor EOPT shall enter into any merger or consolidation without obtaining the prior written consent thereto in writing of the Majority Banks, which consent shall not and shall not cause be unreasonably withheld, conditioned or permit their Subsidiaries to directly or indirectly: delayed, unless (i) amend, modify the Borrower or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower EOPT is the surviving entity, (ii) the entity which is merged into Borrower or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; EOPT is predominantly in the commercial real estate business, (iii) the creditworthiness of the surviving entity's long term unsecured debt or implied senior debt, as applicable, is not lower than Borrower's or EOPT's creditworthiness two months immediately preceding such merger, and (iv) the then fair market value of the assets of the entity which is merged into the Borrower or EOPT is less than twenty-five percent (25%) of the Borrower's or EOPT's then Total Asset Value following such merger. Neither the Borrower nor EOPT shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks' consent, which shall not be unreasonably withheld, conditioned or delayed. Without limitation of the foregoing, any Borrower or no Person shall be admitted as a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all general partner of the assets Borrower other than EOPT. EOPT shall not amend its declaration of trust, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks' consent, which shall not be unreasonably withheld, conditioned or delayed. The Borrower shall not make any "in-kind" transfer of any Person (a “Target”of its property or assets to any of its constituent partners if such transfer would result in an Event of Default under Section 6.1(b) or operating division by reason of a Target or one hundred percent (100%) breach of the outstanding stock provisions of Section 5.8.
(c) Subject to the provisions of clause (b) above, the Borrower shall deliver to Administrative Agent copies of all amendments to its agreement of limited partnership or to EOPT's declaration of trust, by-laws, or other organizational documents no less than ten (10) days after the effective date of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;amendment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Equity Office Properties Trust)
Restriction on Fundamental Changes. (a) The Credit Parties Neither AMB LP nor AMB shall not and shall not cause enter into any merger or permit their Subsidiaries to directly or indirectlyconsolidation without obtaining the prior written consent thereto in writing of the Required Banks, unless the following criteria are met: (i) amend, modify AMB LP or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, AMB is the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedsurviving entity; (ii) enter the entity which is merged into any transaction AMB LP or AMB is predominantly in the commercial real estate business; (iii) the creditworthiness of merger the surviving entity’s long term unsecured debt or consolidation exceptimplied senior debt, upon as applicable, is either: (A) Investment Grade or (B) if not less Investment Grade, not lower than five AMB LP’s or AMB’s creditworthiness, as applicable, two months immediately preceding such merger; and (5iv) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Whollymerger where the then fair market value of the assets of the entity which is merged into AMB LP or AMB is more than twenty-Owned Subsidiary five percent (other than Canadian Borrower25%) of a Borrower may AMB LP’s or AMB’s, as applicable, then Total Asset Value following such merger, the consent of the Required Banks has been obtained, which consent shall not be merged with unreasonably withheld, conditioned or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) delayed. Neither AMB LP nor AMB shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part Table of Contents substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness.
(b) Notwithstanding AMB LP shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Required Banks’ consent. Without limitation of the foregoing, no Person shall be admitted as a general partner of AMB LP other than AMB. AMB shall not amend its articles of incorporation, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Required Banks’ consent. No Borrower shall amend its organizational documents in any manner that would have a Material Adverse Effect without the Required Banks’ consent. AMB LP shall not make any “in-kind” transfer of any of its property or assets to any of its constituent partners if such transfer would result in an Event of Default under Section 7.1(b) by reason of a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all breach of the assets provisions of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;6.8.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (ia) amend, modify or waive any term or provision of its organizational documentsdocuments in a manner materially adverse to the Lenders, including its articles of incorporation, memorandum of association, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a any manner which would aversely affect Agent and materially adverse to the Agents or Lenders in any material respect unless required by law; provided, that, the Related Transactions, it being understood and agreed that any such amendments, waiver amendment to the organizational documents of Exopack Canada or modifications required in connection therewith TPG Canada to effectuate the Permitted Amalgamation shall not be considered materially adverse to any Agent or any Lender and shall be specifically permittedpermitted hereunder; (iib) enter into any transaction of merger or consolidation except for the Permitted Amalgamation and except, upon not less than five (5) Business Days’ Days prior written notice to Agent Agents, (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), 1) any Whollywholly-Owned owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, provided that such Borrower is the surviving entity) or be merged or consolidated any other wholly-owned Subsidiary of such Borrower (provided that, in the case of any such merger of any Domestic Subsidiary with or into any a Foreign Subsidiary, the Domestic Subsidiary is the surviving entity) and (2) Canadian Borrower and The Packaging Group (Canada) Corporation may do all things necessary to amalgamate into each other Wholly-Owned Subsidiary of so long as such Borroweramalgamation is in form and substance reasonably satisfactory to Agents; (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (ivd) acquire by purchase or otherwise all or any substantial part substantially all of the Stock, business or assets of any other Person other than another Credit Party.
(b) except as part of the Permitted Amalgamation. Notwithstanding the foregoing, any Borrower (or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party Holdings, so long as contemporaneously therewith, all assets so acquired are transferred to one or more Borrowers contemporaneous with the closing of such acquisition), may acquire all or substantially all of the assets assets, business or Stock of any Person (a the “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):) subject to the satisfaction of each of the following conditions:
(i) Agent Agents shall receive at least fourteen (14) days7 Business Days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets located in the United States or Canada (other than assets representing less than 10% of the total assets acquired with respect to any such Permitted Acquisition) and comprising a business business, or those assets of a business business, of the type engaged in by Borrowers as of the Closing Date Date, and which business would not subject any Agent or otherwise permitted any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under Section 3.9this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrowers prior to such Permitted Acquisition;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Indebtedness, Guaranteed Indebtedness, Contingent Obligations or other liabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (iiA) Loans made hereunderhereunder and (B) ordinary course trade payables, accrued expenses and unsecured Indebtedness 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;
(v) the sum of all amounts payable with the proceeds of Loans hereunder in connection with such Permitted Acquisition (excluding all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and including all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in 10,000,000 individually and together with the aggregate per year or (2) more than (A) purchase price for all other Permitted Acquisitions shall not exceed $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectivelyhereof;
(vi) the Target shall have positive EBITDA for the twelve month period preceding such acquisition taking into account verifiable cost addbacks approved by Agents or the aggregate amount of the borrowing base value of the Target’s assets (determined in accordance with the borrowing base formula set forth herein) plus the amount of any additional equity invested in the Target shall be equal to an amount not less than the purchase price; the assumed and continuing liabilities of the Target are of a type and in an amount reasonably acceptable to Agents;
(vii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(viiviii) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, Applicable Agent will be granted Liens a first priority perfected Lien (subject to Permitted Encumbrances) in accordance with Section 2.11 in substantially all of the assets personal property acquired pursuant thereto or in all or substantially all of the assets personal property and Stock of the Target, all and Holdings and Borrowers and the Target shall have executed such documents and taken such actions as may be reasonably required by Applicable Agent in connection therewith, in each case subject to the requirements of Section 4.8;
(ix) Concurrently with delivery of the Stock notice referred to in clause (i) above, Borrowers shall have delivered to Agents, in form and substance reasonably satisfactory to Agents:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Target 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 average daily Aggregate Borrowing Availability for the 30-day period preceding the consummation of such Permitted Acquisition would have been equal to or exceeded $4,500,000 on a stock purchase or merger resulting pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in a new Subsidiaryconnection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall have been pledged reflect that such Aggregate Borrowing Availability of $4,500,000 shall continue for at least 30 days after the consummation of such Permitted Acquisition, and 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 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 Holdings 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 were prepared on the basis of the assumptions stated therein, and such assumptions were believed to be reasonable at the time prepared, it being understood and agreed that Projections are not to be viewed as facts and that actual results during the period covered by the Projections may differ materially from projected results; and (z) Holdings and its Subsidiaries have completed their due diligence investigation with respect to the Target (and such Permitted Acquisition, which investigation was conducted in a Stock purchase 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 Agents and Lenders;
(x) on or merger resulting in a new Subsidiary) prior to the date of such Permitted Acquisition, Agents shall have become a Guarantor received, in form and a Credit Party hereunder;substance reasonably satisfactory to Agents, copies of the acquisition agreement and related material agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agents in connection with the Permitted Acquisition; 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 unless Agents and Requisite Lenders shall have received appraisals of such Accounts and Inventory and shall have completed field examinations with respect thereto, in each case in form and substance satisfactory to Agents.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor EOPT shall enter into any merger or consolidation without obtaining the prior written consent thereto in writing of the Majority Banks, which consent shall not and shall not cause be unreasonably withheld, conditioned or permit their Subsidiaries to directly or indirectly: delayed, unless (i) amend, modify the Borrower or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower EOPT is the surviving entity, (ii) the entity which is merged into Borrower or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; EOPT is predominantly in the commercial real estate business, (iii) the creditworthiness of the surviving entity’s long term unsecured debt or implied senior debt, as applicable, is not lower than Borrower’s or EOPT’s creditworthiness two months immediately preceding such merger, and (iv) the then fair market value of the assets of the entity which is merged into the Borrower or EOPT is less than twenty-five percent (25%) of the Borrower’s or EOPT’s then Total Asset Value following such merger. Neither the Borrower nor EOPT shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks’ consent, which shall not be unreasonably withheld, conditioned or delayed. Without limitation of the foregoing, any Borrower or no Person shall be admitted as a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all general partner of the assets Borrower other than EOPT. EOPT shall not amend its declaration of trust, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks’ consent, which shall not be unreasonably withheld, conditioned or delayed. No Qualified Borrower shall amend its organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks’ consent. The Borrower shall not make any “in-kind” transfer of any Person (a “Target”of its property or assets to any of its constituent partners if such transfer would result in an Event of Default under Section 6.1(b) or operating division by reason of a Target or one hundred percent (100%) breach of the outstanding stock provisions of Section 5.8.
(c) Subject to the provisions of clause (b) above, the Borrower shall deliver to Administrative Agent copies of all amendments to its agreement of limited partnership or to EOPT’s declaration of trust, by-laws, or other organizational documents no less than ten (10) days after the effective date of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;amendment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Eop Operating LTD Partnership)
Restriction on Fundamental Changes. (a) 7.6.1. The Credit Parties shall Borrower will not and shall will not cause or permit their any of its Subsidiaries to directly or indirectlyindirectly to: (i) amend, modify or waive any term or provision of its organizational organization documents, including including, without limitation, its certificate of limited partnership, articles of incorporation, membership agreement, certificates of designations designation pertaining to preferred stock, by-laws, partnership agreement or operating agreement by-laws in a manner which would aversely affect Agent and Lenders in any material respect adverse to the Lender unless (a) such actions are required by law; provided, that, the Related Transactions, and any law or (b) such amendments, waiver or modifications required actions are in connection therewith shall be specifically permittedwith the initial public offering of the Borrower's equity securities (provided that all such actions are in form and substance satisfactory to the -------- Lender); (ii) enter into any transaction of merger or consolidation exceptexcept (a) in connection with a Permitted Acquisition, upon not less than five the Person which is the subject of such Permitted Acquisition may merge with and into a Subsidiary of the Borrower or a Subsidiary of the Borrower may merge with or into such Person and (5b) Business Days’ prior written notice to Agent (or, in any Subsidiary of the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such the Borrower (provided, provided -------- that such the Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such the Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other Person, other than another Credit PartyPermitted Acquisitions, Capital Expenditures permitted hereunder and inventory purchased in the ordinary course of business.
(b) Notwithstanding the foregoing7.6.2. The Borrower will not consummate, and will not permit any Subsidiary to consummate, any Borrower or Acquisition other than a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
. The Borrower shall provide to the Lender within five (5) Business Days after such Acquisition, (i) Agent shall receive at least fourteen (14) days’ prior written notice copies of all executed acquisition agreements and other documents pertaining to such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
Acquisition and (ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtednessevidence, in each case secured solely by Fixturesform and substance satisfactory to the Lender, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred that the Lender (a) is granted a first priority perfected security interest (subject only to Permitted Encumbrances) in anticipation of all assets being acquired pursuant to such Permitted Acquisition (“and, in the case of a Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) involving the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all purchase of the assets acquired pursuant thereto Person's capital stock, the Borrower shall pledge, or in all or substantially all of the assets of the Targetshall cause to be pledged, all of the Stock shares of Target (in a capital stock purchase of such acquired Person owned by it or merger resulting in a new Subsidiary) shall have been pledged any other Borrower Entity to Agentthe Lender for the benefit of the Lender, and Target shall cause such acquired Person to guarantee the Loan Obligations and to grant to the Lender a first priority perfected security interest (subject only to Permitted Encumbrances) in a Stock purchase such Person's assets) and (b) will be provided such other documents and instruments as the Lender shall request from time to time to perfect or merger resulting maintain the perfection of its security interest in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;assets of the acquired Person.
Appears in 1 contract
Samples: Loan Agreement (Zefer Corp)
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor General Partner shall not and shall not cause enter into any merger or permit their Subsidiaries to directly or indirectlyconsolidation without obtaining the prior written consent thereto in writing of the Required Banks, unless the following criteria are met: (i) amend, modify the Borrower or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, General Partner is the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedsurviving entity; (ii) enter the entity which is merged into any transaction Borrower or General Partner is predominantly in the commercial real estate business; (iii) the creditworthiness of merger the surviving entity's long term unsecured debt or consolidation exceptimplied senior debt, upon as applicable, is either (A) Investment Grade or (B) if not less Investment Grade, not lower than five Borrower's or General Partner's creditworthiness, as applicable, two months immediately preceding such merger; and (5iv) Business Days’ prior written notice to Agent (or, in the case of Canadian any merger where the then fair market value of the assets of the entity which is merged into the Borrower and its Subsidiaries, Canadian Agent), any Whollyor General Partner is more than twenty-Owned Subsidiary five percent (other than Canadian Borrower25%) of a the Borrower's or General Partner's, as applicable, then Total Asset Value following such merger, the consent of the Required Banks has been obtained, which consent shall not be unreasonably withheld, conditioned or delayed. Neither the Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) nor General Partner shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Required Banks' consent. Without limitation of the foregoing, any Borrower or no Person shall be admitted as a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all general partner of the assets Borrower other than General Partner. General Partner shall not amend its articles of incorporation, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Required Banks' consent. No Qualified Borrower shall amend its organizational documents in any manner that would have a Material Adverse Effect without the Required Banks' consent. The Borrower shall not make any "in-kind" transfer of any Person (a “Target”of its property or assets to any of its constituent partners if such transfer would result in an Event of Default under Section 6.1(b) or operating division by reason of a Target or one hundred percent (100%) breach of the outstanding stock provisions of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;5.8.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter Enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrowerconsolidation; (iiiii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution); or (iii) exceptconvey, upon sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or the capital stock of any of its Subsidiaries, whether now owned or hereafter acquired; provided, however, that so long as no Event of Default then exists or would result therefrom (x) any Borrower or Guarantor may merge or consolidate with, or convey, sell or transfer all or substantially all of its assets to, any other Borrower or Guarantor, provided a Borrower is the surviving corporation in any such merger or consolidation and any such transaction shall not less adversely affect any of the rights of Lender under the EximBank Documents, (y) any Inactive Subsidiary may liquidate or dissolve or merge or consolidate with or into another Loan Party provided a Borrower or a Guarantor is the surviving corporation in any such merger or consolidation involving a Borrower or Guarantor and any such transaction shall not adversely affect any of the rights of Lender under and shall not be prohibited by the EximBank Documents and (z) any Subsidiary which is not a Domestic Subsidiary may liquidate or dissolve, or merge or consolidate with or into, another non-Domestic Subsidiary or a Loan Party (other than five (5a Borrower) Business Days’ prior written notice to Agent whose capital stock is pledged (or, in if a non-Domestic Subsidiary, 65% of whose capital stock is pledged) to the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary Lender pursuant to a Pledge Agreement.
(other than Canadian BorrowerB) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire Acquire by purchase or otherwise otherwise, all or any substantial part of the business or assets of, or stock or other evidence of beneficial ownership of, any Person or a division of any Person other than another Credit Party.
(b) Notwithstanding the foregoingor establish, create or acquire any new Subsidiary; provided, however, that so long as no Default or Event of Default has occurred and is continuing before and after giving effect thereto, any Borrower Borrower, any Guarantor or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party any of their Subsidiaries may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of all the outstanding capital stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions Person (in each case, a “"Permitted Acquisition”):") or organize a new Subsidiary solely to do so; provided that each Permitted Acquisition shall be subject to the satisfaction of the condition precedent that the Unused Availability shall be not less than $2,000,000 without giving effect to the proposed Permitted Acquisition for the ninety (90) day period preceding the consummation thereof and to the satisfaction of each of the following additional conditions precedent:
(i1) Agent Lender shall receive at least fourteen not less than fifteen (1415) days’ Business Days' prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii2) such Permitted Acquisition shall only involve be of capital stock of a Target whose assets comprising a business (except assets with an aggregate market value of $100,000 or less) are located solely in, or those assets of a business Target (except assets with an aggregate market value of $100,000 or less) which are located solely in, the United States and comprising a business, or those assets of a business, of the type engaged in by Borrowers as of the Closing Date or otherwise permitted a related, similar or compatible business, and which business would not subject Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under Section 3.9this Agreement or any other Loan Documents;
(iii3) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s 's board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi4) the business and assets of the Target acquired in such Permitted Acquisition shall be acquired free and clear of all Liens (other than Permitted Encumbrances);
(vii5) no Indebtedness, contingent obligations or other liabilities shall be incurred or assumed in connection with such Permitted Acquisition, except (Ax) Loan advances, (y) ordinary course trade payables and accrued expenses and (z) Indebtedness and guaranties permitted under Section 7.1 and Section 7.2;
(6) on or prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisitiondate thereof, Agent Lender will be granted Liens a first and prior perfected security interest (subject to Permitted Encumbrances) in all assets and equity securities being acquired pursuant to such Permitted Acquisition, and the Borrowers, the Guarantors and their respective Subsidiaries shall have executed such documents and taken such actions as may be required by Lender in connection therewith;
(7) Borrowers shall have delivered to Lender, in form and substance satisfactory to Lender:
(i) pro forma balance sheets of Borrowers, Guarantors and their respective Subsidiaries (the "Acquisition Pro Forma") on a consolidated basis, based on financial data as of a recent date, which shall be complete and shall accurately and fairly represent the assets, liabilities, financial condition and results of operations of Borrowers, Guarantors and their respective Subsidiaries in accordance with Section 2.11 GAAP consistently applied, but taking into account such Permitted Acquisition and the funding of all Loans in substantially connection therewith, and the Acquisition Projections (as hereinafter defined) shall reflect that Unused Availability for the 90-day period following the consummation of such Permitted Acquisition will exceed $2,000,000 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);
(ii) updated versions of the assets acquired pursuant thereto or most recently delivered projections covering the one (1) year period commencing on the date of such Permitted Acquisition and otherwise prepared in all or substantially all accordance with subsections 4.3 and 4.17 (the "Acquisition Projections") and based upon historical financial data of a recent date satisfactory to Lender, taking into account such Permitted Acquisition; and
(iii) a certificate of the assets chief financial officer of Systems and Borrowers to the effect that: (I) each Borrower and Guarantor (after taking into consideration all rights of contribution and indemnity such Borrower and Guarantor has against each other Borrower and Guarantor) will be solvent (as represented by Borrowers in subsection 4.16) upon the consummation of the Targettransaction contemplated by the Permitted Acquisition; (II) the Acquisition Pro Forma fairly presents the financial condition of Borrowers, Guarantors and their respective Subsidiaries (on a consolidated basis) as of the date hereof after giving effect to the transactions contemplated by such Permitted Acquisition; (III) the Acquisition Projections are good faith estimates, based on assumptions believed at the date of such certificate in good faith to be reasonable, of the future financial performance of Borrowers, Guarantors and their respective Subsidiaries subsequent to the date thereof based upon the historical performance and the projected future financial performance of Borrowers, Guarantors and their respective Subsidiaries; and (IV) Borrowers, Guarantors and their respective 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 acceptable to Borrowers, Guarantors and their respective Subsidiaries;
(8) on or prior to the date of such Permitted Acquisition, Lender shall have received, in form and substance satisfactory to Lender, all collateral and security documents, opinions, certificates, lien search results and other documents reasonably requested by Lender to evidence compliance with the foregoing provisions of this subsection 7.6(B); and
(9) the Stock total Acquisition Costs payable in connection with such Permitted Acquisition shall not exceed $750,000 and the sum of Target (all Acquisition Costs paid in a stock purchase or merger resulting any Fiscal Year in a new Subsidiary) connection with all Permitted Acquisitions shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;not exceed $1,000,000.
Appears in 1 contract
Restriction on Fundamental Changes. Neither any Borrower nor any other Loan Party will: (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrowerconsolidation; (iiib) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon except that SDI shall cease operations as promptly as practicable (and, if such operations are not less than five (5) Business Days’ ceased and SDI is not dissolved on or prior written notice to Agent (orJune 30, 1998, Guardian shall execute and deliver a pledge agreement, in form and substance satisfactory to Lender, pledging all of the case issued and outstanding capital stock of Canadian Borrower and SDI to Lender as additional collateral securing the Obligations); (c) convey, sell, lease, sublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or assets, or issue, sell or dispose of any of its capital stock or the capital stock of any of its Subsidiaries, Canadian Agent)whether now owned or hereafter acquired, any Wholly-Owned Subsidiary except that (other than Canadian Borroweri) Guardian may issue and sell shares of a Borrower its Series B Preferred Stock to Westar on the Effective Date in accordance with the terms of the Supplemental Westar Equity Documents, and (ii) subsequent to the Effective Date, Guardian may liquidateissue shares of its Preferred Stock to Westar in lieu of the payment of cash dividends on its Preferred Stock owned by Westar, wind-up or dissolve itself (may issue shares of its Class A Common Stock to Westar upon the conversion of its Preferred Stock held by Westar, in either case so long as such issuance in lieu of dividends or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary conversion is consummated and effected in accordance with the terms of such Borrowerthe Westar Equity Documents and/or the Supplemental Westar Equity Documents, as applicable; or (ivd) acquire by purchase or otherwise all or any substantial part of the business or assets of, or stock or other evidence of any Person other than another Credit Party.
(b) Notwithstanding the foregoingbeneficial ownership of, any Person, except that any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any from another Person (pursuant to a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
Bulk Contract Purchase so long as (i) Agent at the time of any such transaction and after giving effect thereto, no Default or Event of Default shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
have occurred and be continuing; (ii) such Permitted Acquisition the applicable Seller shall only involve assets comprising have agreed in writing to be bound by a business guarantee or those assets of a business of the type engaged replacement clause substantially similar to that set forth in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
Schedule 7.6; and (iii) such Permitted Acquisition shall be consensual and Lender shall have been approved completed such due diligence in respect of the portfolio of Contracts to be acquired pursuant to such Bulk Contract Purchase (or series of related such transactions) as it may request and Lender shall have given its prior written consent to the consummation thereof by the Target’s board applicable Borrower, such consent not to be unreasonably withheld or delayed; provided that the requirements of directors;
this clause (iviii) no additional Indebtedness or Contingent Obligations shall need not be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 satisfied in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing case of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all such Bulk Contract Purchase (or series of the assets acquired pursuant thereto related such transactions) which is for an aggregate amount of $2,500,000 or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;less.
Appears in 1 contract
Samples: Loan and Security Agreement (Guardian International Inc)
Restriction on Fundamental Changes. (a) The Credit Loan Parties shall will not, and will not and shall not cause or permit their respective Restricted Subsidiaries to (other than Excluded Subsidiaries) to, directly or indirectly: (iA) unless and only to the extent required by law or as would not be reasonably expected to be materially adverse to the interests of Lenders, amend, modify or waive any term or provision of its organizational documentstheir respective articles of organization, including its operating agreements, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock, by-lawsby-laws, articles of formation or partnership agreement or operating agreement (provided that, 10 days prior notice will be delivered to Administrative Agent of any modification that results in a manner which would aversely affect Agent Loan Party, any Subsidiary of a Loan Party (other than an Excluded Subsidiary) or any entity whose equity interest is pledged by a Loan Party pursuant to the Pledge and Lenders in any material respect unless required by law; provided, that, Security Agreement opting into Article 8 of the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedUCC); (iiB) enter into consummate any transaction of merger or consolidation exceptconsolidation, upon not less than five except that (5i) Business Days’ prior written notice to Agent (or, in the case any Subsidiary of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (providedprovided that, that such Borrower is the surviving entity), (ii) any Loan Party other than Borrower may merge or consolidate with any other Loan Party other than Borrower, (iii) any Subsidiary that is not a Loan Party may merge, dissolve, liquidate or consolidate with or into any Loan Party, provided that, such Loan Party shall be merged the continuing or consolidated surviving corporation, (iv) any Restricted Subsidiary which is not a Loan Party may merge, dissolve, liquidate, consolidate with or into any other Wholly-Owned Restricted Subsidiary, (v) any Excluded Subsidiary of such Borrowermay merge, dissolve, liquidate or consolidate with or into any other Person, and (vi) any Permitted Acquisition and Investment or any other Investment or Asset Disposition permitted hereunder may be structured as merger, consolidation or amalgamation; (iiiC) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary except in connection with another transaction permitted under clause (other than Canadian BorrowerB) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower above or any other Wholly-Owned Subsidiary of such BorrowerAsset Disposition permitted under Subsection 3.7; or (ivD) acquire by purchase or otherwise all or any substantial part of the business business, assets or assets equity interests of any Person other than another Credit Party.
(b) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of in any Person (whether by stock purchase or otherwise) other than pursuant to a “Target”Permitted Acquisition and Investment or any other Investment permitted hereunder; provided that 10 days after (or such earlier date, which need not be more than 10 days prior to, as is required to maintain the perfection or priority of Administrative Agent’s security interests) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice effective date of such proposed Permitted Acquisitionmerger, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business consolidation, dissolution, liquidation, or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 amalgamation in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and case of clause (B) $50,000,000 or clause (C), such acquisition in the aggregate during case of clause (D), or such amendment, modification or waiver in the term case of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) clause (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition), Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) Borrower shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor provide notice and a Credit Party hereunder;copy thereof or the documentation relating thereto to Administrative Agent.
Appears in 1 contract
Samples: Third Amendment and Confirmation Agreement (ATN International, Inc.)
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor EQR shall not and shall not cause enter into any merger or permit their Subsidiaries to directly or indirectly: consolidation, unless (i) amendthe Borrower or EQR is the surviving entity, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter the entity which is merged into Borrower or EQR is predominantly in the commercial real estate business, (iii) the creditworthiness of the surviving entity's long term unsecured debt or implied senior debt, as applicable, is not lower than Borrower's or EQR's creditworthiness two months immediately preceding such merger, (iv) no Event of Default shall be outstanding as of the effective date of any transaction of such merger or consolidation exceptconsolidation, upon not less than five and (5v) Business Days’ prior written notice to Agent (or, in the case of Canadian any merger where the then fair market value of the assets of the entity which is merged into the Borrower and its Subsidiaries, Canadian Agent), any Whollyor EQR is twenty-Owned Subsidiary five percent (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity25%) or more of the Borrower's or EQR's then Gross Asset Value following such merger, the Administrative Agent's consent thereto in writing, which consent shall not be merged unreasonably withheld, conditioned or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) delayed. Neither the Borrower nor EQR shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the foregoingAdministrative Agent's consent, which shall not be unreasonably withheld. EQR shall not amend its declaration of trust, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Administrative Agent's consent, which shall not be unreasonably withheld.
(c) The Borrower shall deliver to Administrative Agent copies of all amendments to its agreement of limited partnership or a Domestic Whollyto EQR's declaration of trust, by-Owned Subsidiary thereof that is a Credit Party may acquire all laws, or substantially all of other organizational documents no less than ten (10) days after the assets effective date of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;amendment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Equity Residential Properties Trust)
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Party.
(b) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 10) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;
Appears in 1 contract
Samples: Credit Agreement (Uap Holding Corp)
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amendChange its name, modify or waive any term or provision change the nature of its organizational documentsbusiness from the business conducted by Borrower and its Subsidiaries on the Closing Date (and complementary businesses reasonably related thereto), including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger merger, consolidation, reorganization, or consolidation exceptrecapitalization, upon not less than five or reclassify its partnership interests (5whether limited or general) Business Days’ prior written notice to Agent (oror membership interests, as applicable, or convey, sell, assign, lease, transfer, or otherwise dispose of, in the case one transaction or a series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the its business or assets Assets, whether now owned or hereafter acquired except:
(a) Borrower or any of any Person other than another Credit Party.its Subsidiaries may sell Assets in accordance with the provisions of Section 6.7 hereof;
(b) Notwithstanding the foregoing, any Borrower or any of its Subsidiaries may merge or consolidate with any Person; provided, that (i) in the case of any merger or consolidation involving Borrower, Borrower shall be the continuing or surviving corporation; (ii) in the case of any merger or consolidation involving a Domestic WhollyBroker-Owned Dealer Subsidiary, the surviving entity shall be a Subsidiary thereof which is a broker-dealer, or (iii) in the case of any merger or consolidation involving a Subsidiary of Borrower that is a Credit Party Guarantor, such Subsidiary of Borrower that is a Guarantor shall be the continuing or surviving corporation;
(c) any Subsidiary of the Borrower may acquire all liquidate or substantially dissolve if such liquidation or dissolution is not materially disadvantageous to Lender and Borrower determines in good faith that such liquidation or dissolution is in the best interests of Borrower; provided that (i) in the case of a liquidation or dissolution of a Guarantor, all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice proceeds of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business liquidation or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition dissolution shall be consensual and shall have been approved by distributed to the Target’s board of directors;
(iv) no additional Indebtedness Borrower or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) another Guarantor and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year case of a liquidation or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term dissolution of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Targeta Broker-Dealer Subsidiary, all of the Stock proceeds of Target such liquidation or dissolution shall be distributed to another Broker-Dealer Subsidiary; and
(in a stock purchase d) upon 30 days prior written notice to Lender, Borrower or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;any its Subsidiaries may change its name.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor EOPT shall enter into any merger or consolidation without obtaining the prior written consent thereto in writing of the Majority Banks, which consent shall not and shall not cause be unreasonably withheld, conditioned or permit their Subsidiaries to directly or indirectly: delayed, unless (i) amend, modify the Borrower or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower EOPT is the surviving entity, (ii) the entity which is merged into Borrower or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; EOPT is predominantly in the commercial real estate business, (iii) the creditworthiness of the surviving entity's long term unsecured debt or implied senior debt, as applicable, is not lower than Borrower's or EOPT's creditworthiness two months immediately preceding such merger, and (iv) the then fair market value of the assets of the entity which is merged into the Borrower or EOPT is less than twenty-five percent (25%) of the Borrower's or EOPT's then Total Asset Value following such merger. Neither the Borrower nor EOPT shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness. Notwithstanding anything in this Agreement to the contrary, the parties hereto hereby agree that the Majority Banks shall be deemed to have approved the terms of the Cornerstone Merger set forth in the Confidential Information Memorandum.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks' consent, which shall not be unreasonably withheld. Without limitation of the foregoing, any Borrower or no Person shall be admitted as a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all general partner of the assets Borrower other than EOPT. EOPT shall not amend its declaration of trust, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks' consent, which shall not be unreasonably withheld. The Borrower shall not make any "in-kind" transfer of any Person (a “Target”of its property or assets to any of its constituent partners if such transfer would result in an Event of Default under Section 6.1(b) or operating division by reason of a Target or one hundred percent (100%) breach of the outstanding stock provisions of Section 5.8.
(c) Subject to the provisions of clause (b) above, the Borrower shall deliver to Administrative Agent copies of all amendments to its agreement of limited partnership or to EOPT's declaration of trust, by-laws, or other organizational documents no less than ten (10) days after the effective date of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;amendment.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Without the prior written consent of Lender, which consent may be withheld in the sole and absolute discretion of Lender, (i) Borrower and the other Loan Parties shall not enter into any merger or consolidation following which the REIT or an entity wholly owned by the REIT is no longer the sole general partner of the Borrower; or a merger or consolidation following which the Corporation or entities wholly owned by the Corporation are no longer the sole general partners of the Partnership; if such events occur without the prior written consent of Lender, all Advances shall be due and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentspayable in full, including its articles all principal, interest and Fees, on the earliest to occur of incorporationthe expiration of each related Interest Period with respect to Eurodollar Portions or the next payment date with respect to Base Rate Portions, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent the Maturity Date; and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger the REIT shall not sell, transfer, pledge, assign or consolidation exceptencumber its general partnership interest in Borrower and the Corporation shall not sell, upon not less than five (5) Business Days’ prior written notice to Agent (ortransfer, pledge, assign or encumber its general partnership interest in the case of Canadian Borrower and its SubsidiariesPartnership, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is except to an entity wholly owned by the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit PartyCorporation.
(b) Notwithstanding Without the foregoingprior written consent of Lender, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party which consent may acquire all or substantially all be withheld in the sole and absolute discretion of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidatedLender, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent Borrower shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisitionnot sell, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
transfer, pledge, assign or encumber its general partnership or limited partnership interest in Maryland Guarantor, (ii) such Permitted Acquisition SLT Realty Company L.L.C. shall only involve assets comprising a business not sell, transfer, pledge, assign or those assets of a business of the type engaged encumber its limited partnership or other ownership interest in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
Guarantor, (iii) such Permitted Acquisition the Corporation shall be consensual and shall have been approved by not sell, transfer, pledge, assign or encumber its general partnership or limited partnership interest in the Target’s board of directors;
Maryland Partnership, (iv) no additional Indebtedness the Partnership shall not sell, transfer, assign or Contingent Obligations shall be incurredencumber its limited partnership interest in the Maryland Property, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum Partnership shall not sell, transfer, pledge, assign or encumber any of all amounts payable its shares of stock in connection with all Permitted Acquisitions Midland Holding, (includingvi) Midland Holding shall not sell, without duplicationtransfer, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debtpledge assign or encumber any of its shares of stock in Illinois Guarantor or Midland Hotel, and Contingent Obligations incurred (vii) none of the Loan Parties shall enter into or assumed in connection therewith permit any merger or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than consolidation following which (A) $25,000,000 in Midland Holding shall not be wholly owned by the aggregate per year and Partnership, (B) $50,000,000 in the aggregate during the term of this AgreementIllinois Guarantor shall not be wholly owned by Midland Holding, for International Acquisitions and Canadian Acquisitions collectively;
or (viC) the business and assets acquired in such Permitted Acquisition Midland Hotel shall not be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;wholly owned by Midland Holding.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor EOPT shall enter into any merger or consolidation without obtaining the prior written consent thereto in writing of the Majority Banks, which consent shall not and shall not cause be unreasonably withheld, conditioned or permit their Subsidiaries to directly or indirectly: delayed, unless (i) amend, modify the Borrower or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower EOPT is the surviving entity, (ii) the entity which is merged into Borrower or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; EOPT is predominantly in the commercial real estate business, (iii) the creditworthiness of the surviving entity's long term unsecured debt or implied senior debt, as applicable, is not lower than Borrower's or EOPT's creditworthiness two months immediately preceding such merger, and (iv) the then fair market value of the assets of the entity which is merged into the Borrower or EOPT is less than twenty-five percent (25%) of the Borrower's or EOPT's then Total Asset Value following such merger. Neither the Borrower nor EOPT shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks' consent, which shall not be unreasonably withheld. Without limitation of the foregoing, any Borrower or no Person shall be admitted as a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all general partner of the assets Borrower other than EOPT and Zell/Xxxrxxx Xxxcx Xxxl Estate Opportunity Partners Limited Partnership II. EOPT shall not amend its declaration of trust, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks' consent, which shall not be unreasonably withheld. The Borrower shall not make any "in-kind" transfer of any Person of its property or assets to any of its constituent partners. 63
(a “Target”c) Subject to the provisions of clause (b) above, the Borrower shall deliver to Administrative Agent copies of all amendments to its agreement of limited partnership or operating division to EOPT's declaration of a Target trust, by-laws, or one hundred percent other organizational documents no less than ten (100%10) of days after the outstanding stock effective date of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;amendment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Eop Operating LTD Partnership)
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the its business or property, whether now or hereafter acquired, except (i) as otherwise permitted under Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, PROVIDED, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Borrower in a Permitted Acquisition permitted hereunder may merge with the Borrower or any wholly-owned Subsidiary of the Borrower, PROVIDED, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, PROVIDED, FURTHER, that in each case, (A) any such wholly-owned Subsidiary of the Borrower which is the surviving corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (B) the Borrower shall give the Administrative CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, (C) the Administrative Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Person other than another Credit PartySubsidiary so merged and (D) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto or as a result thereof.
(b) Notwithstanding Borrower shall not and shall not permit any of its Subsidiaries to, amend its certificate of incorporation or by-laws (or other relevant organizational and governing documents) in any manner adverse to the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all interests of the assets of any Person (a “Target”) Administrative Agent or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Lenders.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets property of the Borrower, or, in the case of a Subsidiary of the Borrower, the business or property of the Borrower and its Subsidiaries taken as a whole, whether now or hereafter acquired; PROVIDED that any disposition of less than 15% of Consolidated Net Tangible Assets shall not be deemed to be a substantial part and PROVIDED FURTHER that any such merger or consolidation shall be permitted if (i) the Borrower shall be the continuing corporation (in the case of a merger or consolidation), or the successor, if other than the Borrower, shall be a corporation organized and existing under the laws of the United States of 71 42 America or any State thereof and such corporation shall expressly assume to the satisfaction of the Agent the due and punctual performance and observance of all of the covenants and obligations contained in this Agreement and the Notes to be performed by the Borrower, (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, and (iii) on the effective date of any Person other than another Credit Party.
(b) Notwithstanding such merger or consolidation occurring on or after the foregoingEffective Date, any the covenant contained in Section 5.03, calculated on a pro forma basis with respect to the twelve month period ending on such date, after giving effect to such merger or consolidation with respect to the Borrower or a Domestic Whollyother obligor for the Advances and other obligations hereunder, shall be satisfied; and PROVIDED FURTHER that any wholly-Owned owned Subsidiary thereof that is a Credit Party of the Borrower may acquire merge into or convey, sell, lease or transfer all or substantially all of its assets to, the assets of Borrower or any Person (a “Target”) or operating division of a Target or one hundred percent (100%) other wholly owned Subsidiary of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to Borrower. Pro forma compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition 5.03 shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurreddetermined in a manner which includes appropriate adjustments to Consolidated Interest Expense, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted AcquisitionConsolidated EBT, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital LeasesConsolidated Gross Rental Expense, and installment purchase IndebtednessConsolidated EBITDAR, in each case secured solely by Fixturesincluding, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related propertywithout limitation, and not adjustments designed to reflect indebtedness incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs or in contemplation of such merger or consolidation and all Permitted Acquisition Debtinterest expense for the twelve month period ending on the date of such determination in respect thereof, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior demonstrated to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all reasonable satisfaction of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor ABR shall not and shall not cause enter into any merger or permit their Subsidiaries to directly or indirectlyconsolidation without the prior written consent thereto in writing of the Required Lenders unless the following criteria are met: (i) amend, modify the Borrower or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower ABR is the surviving entity, (ii) the entity which is merged into Borrower or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; ABR is predominantly in the commercial real estate lending business, (iii) the creditworthiness of the surviving entity's long term unsecured debt or implied senior debt, as applicable, is not lower than Borrower's or ABR's creditworthiness, as applicable, two months immediately preceding such merger, and (iv) no Event of Default shall be outstanding as of the effective date of any such merger or consolidation. Neither the Borrower nor ABR shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of the its business or assets of any Person other than another Credit Partyproperty, whether now or hereafter acquired.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the foregoingAdministrative Agent's consent, which shall not be unreasonably withheld. ABR shall not amend its declaration of trust, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Administrative Agent's consent, which shall not be unreasonably withheld.
(c) The Borrower shall deliver to Administrative Agent copies of all amendments to its agreement of limited partnership or a Domestic Whollyto ABR's declaration of trust, by-Owned Subsidiary thereof that is a Credit Party may acquire all laws, or substantially all of other organizational documents no less than ten (10) days after the assets effective date of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):such amendment.
(id) Agent The Borrower shall receive at least fourteen (14) days’ not make any change in the Management Agreement without the prior written notice consent of such proposed Permitted AcquisitionAdministrative Agent, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) consent shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;unreasonably withheld.
Appears in 1 contract
Samples: Revolving Credit Agreement (Arbor Realty Trust Inc)
Restriction on Fundamental Changes. (a) The Credit Parties shall Borrower will not, and will not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders engage in any material respect unless required by law; providedbusiness activities or operations substantially different from or unrelated to those in which it is engaged on the Effective Date, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-wind up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (oror convey, sell, lease, transfer or otherwise dispose of, in the case one transaction or a series of Canadian Borrower and transactions, all or substantially all of its Subsidiariesbusiness or property, Canadian Agent)whether now owned or hereafter acquired, any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of substantially all the business or assets property of, or stock or other evidence of beneficial ownership of, any Person other than another Credit Party.Person, or acquire, purchase, redeem or retire any shares of its capital stock now or hereafter outstanding for value, except:
(a) the Borrower may sell or otherwise dispose of Mortgage Loans, Mortgage-backed Securities, Servicing Rights and Take-out Commitments in the ordinary course of business (provided that no Default or Event of Default exists or will exist after giving effect to such sale or disposition);
(b) Notwithstanding the foregoingBorrower may sell or otherwise dispose of obsolete or worn out property in the ordinary course of business;
(c) the Borrower may sell or otherwise dispose of property, any other than Mortgage Loans, Mortgage-backed Securities and Servicing Rights and Take-Out Commitments, in the ordinary course of business, for not less than its fair market value; and
(d) the Borrower may be consolidated with or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):any of its Subsidiaries provided that:
(i) Agent in any such merger or consolidation the Borrower shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;be the surviving or resulting corporation,
(ii) such Permitted Acquisition merger or consolidation shall only involve assets comprising not result in a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;Material Adverse Effect,
(iii) immediately after the effectiveness of such Permitted Acquisition merger or consolidation there shall not have occurred and be consensual and shall have been approved by the Target’s board continuing a Default or an Event of directors;Default; and
(iv) no additional Indebtedness or Contingent Obligations the Borrower shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, reaffirm in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially writing all of its Obligations hereunder and under the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Harbourton Financial Services L P)
Restriction on Fundamental Changes. (a) The Credit Parties Holdings and Borrower shall not and shall not cause or permit their Borrower’s Subsidiaries to directly or indirectly: (ia) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; providedlaw except if such amendment, thatmodification, the Related Transactions, or waiver could not reasonably be expected to have an adverse effect on Agent or Lenders or affect in any respect any Liens in favor of Agent and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedLenders; (iib) enter into any transaction of merger merger, or consolidation exceptexcept (i) pursuant to a Permitted Acquisition, (ii) the Permitted Foreign Subsidiary Restructuring, or (iii) upon not less than five (5) Business Days’ Days prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into any wholly-owned Subsidiary of Borrower so long as if either such Borrower (providedSubsidiary was a Guarantor prior to such merger, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borroweris a Guarantor; (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (ivd) acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person other than another Credit Party.
(b) except pursuant to a Permitted Acquisition. Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party its Subsidiaries may acquire all or substantially all of the assets or Stock of any Person (a the “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):) subject to the satisfaction of each of the following conditions or waiver thereof by the Requisite Lenders:
(i) Agent shall receive at least fourteen (14) days15 Business Days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business (a) of the type engaged in by Borrowers Borrower and its Subsidiaries as of the Closing Date, (b) substantially similar to the business engaged in by Borrower and its Subsidiaries as of the Closing Date or otherwise permitted (c) that transports on behalf of third parties data communications and which 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 Section 3.9this 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;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Indebtedness, Guaranteed Indebtedness, Contingent Obligations or other liabilities other than Purchase Money Indebtedness permitted pursuant to Section 3.1(e)(iii) shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers Borrower and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (iiA) Loans made hereunder, and (B) ordinary course trade payables, accrued expenses and other Indebtedness of the Target to the extent permitted by Section 3.1 or 3.4;
(v) both before or after giving effect to the sum proposed Permitted Acquisition on a Pro Forma Basis, Borrower is in compliance with the financial covenants set forth in Sections 4.2 and (1) if either before or after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio of all amounts payable more than 2.0 to 1.0, the aggregate consideration (A) in connection with any single Permitted Acquisition shall not exceed $15,000,000 ($12,500,000 in the case of an acquisition (i) by a Foreign Subsidiary, (ii) of an entity that becomes a Foreign Subsidiary after giving effect to the acquisition or (iii) of assets located primarily outside of the United States (each, a “Foreign Acquisition”)), (B) in connection with Permitted Acquisitions in any Fiscal Year shall not exceed $20,000,000 and (C) in connection with all Permitted Acquisitions since the Closing Date shall not exceed $50,000,000, of which not more than $20,000,000 shall have been consideration for Foreign Acquisitions or (including2) if both before and after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, without duplicationBorrower has a pro forma Leverage Ratio of not more than 2.0 to 1.0, the aggregate consideration (A) in connection with any single Permitted Acquisition shall not exceed $25,000,000 ($12,500,000 in the case of a Foreign Acquisition), and (B) in connection with all earn outsPermitted Acquisitions since the Closing Date shall not exceed $70,000,000, working capital adjustmentsof which not more than $20,000,000 shall have been consideration for Foreign Acquisitions, in each case, excluding up to $15,000,000 per acquisition of consideration paid in the form of Holdings Common Stock and including all transaction costs and all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers Borrower and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, Agent will be granted Liens a first priority perfected Lien (subject to Permitted Encumbrances) in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all the assets and Stock of the assets Target in each case to the extent, if any, set forth in Section 2.7(c), 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;
(viii) concurrently with delivery of the Targetnotice referred to in clause (i) above, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) Borrower shall have been pledged 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 Borrowing Availability for the 60-day period preceding the consummation of such Permitted Acquisition would have exceeded $5,000,000 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 $5,000,000 shall continue for at least 60 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 Holdings and its Subsidiaries would have been in compliance with the financial covenants set forth in Section 4 for the four quarter period reflected in the Compliance, Pricing, and Excess Cash Certificate most recently delivered to Agent pursuant to Section 4.3(l) 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) solely in respect of any Permitted Acquisition where the total aggregate consideration exceeds $10,000,000, projections covering the 1 year period commencing on the date of such Permitted Acquisition setting forth in form and substance reasonably satisfactory to Agent the anticipated results of operations of the Target and Holdings and its Subsidiaries (the “Acquisition Projections”) based upon historical financial data for the Target of a recent date reasonably satisfactory to Agent; which Acquisition Projections shall evidence that on a pro forma basis, after giving effect to any add-backs approved by Agent, (i) EBITDA for the four quarter period immediately following such Permitted Acquisition will be at least $1 greater than if such acquisition had not occurred and (ii) Holdings and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Section 4 for the 1 year period thereafter;
(C) a certificate of the chief financial officer (or another officer acceptable to Agent) of Borrower to the effect that: (v) Holdings and its Subsidiaries when taken as a whole will be Solvent upon the consummation of the Permitted Acquisition; (w) the Acquisition Pro Forma fairly presents in all material respects 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 a reasonable estimate 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 Target and (z) Holdings and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a Stock purchase or merger resulting in manner similar to that which would have been conducted by a new Subsidiaryprudent purchaser of a comparable business and the results of which investigation were delivered to Agent;
(ix) at least five (5) Business Days prior to the date of such Permitted Acquisition, Agent shall have become a Guarantor received, in form and a Credit Party hereunder;substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results, copies of all environmental reports and memoranda related thereto to the extent prepared in connection with such Permitted Acquisition, and other documents reasonably requested by Agent, including those specified in Section 2.7; 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
Samples: Credit Agreement (TNS Inc)
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor General Partner shall enter into any merger or consolidation without obtaining the prior written consent thereto in writing of the Required Banks, which consent shall not and shall not cause be unreasonably withheld, conditioned or permit their Subsidiaries to directly or indirectlydelayed, provided the following criteria are met: (i) amend, modify the Borrower or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, General Partner is the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedsurviving entity; (ii) enter the entity which is merged into any transaction of merger Borrower or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, General Partner is predominantly in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrowercommercial real estate business; (iii) the creditworthiness of the surviving entity's long term unsecured debt or implied senior debt, as applicable, is not lower than Borrower's or General Partner's creditworthiness two months immediately preceding such merger; and (iv) the then fair market value of the assets of the entity which is merged into the Borrower or General Partner is less than twenty-five percent (25%) of the Borrower's or General Partner's then Total Asset Value following such merger. Neither the Borrower nor General Partner shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Required Banks' consent. Without limitation of the foregoing, any Borrower or no Person shall be admitted as a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all general partner of the assets Borrower other than General Partner. General Partner shall not amend its articles of incorporation, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Required Banks' consent, which shall not be unreasonably withheld. The Borrower shall not make any "in-kind" transfer of any Person (a “Target”of its property or assets to any of its constituent partners if such transfer would result in an Event of Default under Section 6.1(b) or operating division by reason of a Target or one hundred percent (100%) breach of the outstanding stock provisions of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;5.8.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Holdings and Borrower shall not and shall not cause or permit their Borrower’s Subsidiaries to directly or indirectly: (ia) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; providedlaw except if such amendment, thatmodification, the Related Transactions, or waiver could not reasonably be expected to have an adverse effect on Co-Administrative Agents or Lenders or affect in any respect any Liens in favor of Agent and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedLenders; (iib) enter into any transaction of merger or consolidation exceptexcept (i) pursuant to a Permitted Acquisition, or (ii) upon not less than five (5) Business Days’ Days prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into any wholly-owned Subsidiary of Borrower so long as if either such Borrower (providedSubsidiary was a Guarantor prior to such merger, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borroweris a Guarantor; (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), ; provided that any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidateliquidation, wind-up or dissolve itself dissolution of Transaction Network Services (or suffer Bermuda) Ltd. shall be permitted hereunder so long as any liquidation or dissolution) into assets held by such Borrower or any other Wholly-Owned Subsidiary entity at the time of such Borrowerliquidation, wind-up or dissolution are disposed of in accordance with Section 3.7 hereof; or (ivd) acquire by purchase or otherwise all or any substantial part of the business or assets of of, or a business line, unit or division of, any other Person other than another Credit Party.
(bexcept pursuant to the Acquisition or a Permitted Acquisition or any Investment permitted under Section 3.3(p) or Section 3.3(q). Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party its Subsidiaries may acquire all or substantially all of the assets of or Stock of, or a business line, unit or division of, any Person (a the “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):) subject to the satisfaction of each of the following conditions or waiver thereof by the Requisite Lenders:
(i) Each Co-Administrative Agent shall receive at least fourteen (14) days15 Business Days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business (a) of the type engaged in by Borrowers Borrower and its Subsidiaries as of the Closing Restatement Date, (b) substantially similar to the business engaged in by Borrower and its Subsidiaries as of the Restatement Date or otherwise permitted (c) that transports on behalf of third parties data communications and which business would not subject either Co-Administrative Agent or any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under Section 3.9this 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;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Indebtedness, Guaranteed Indebtedness, Contingent Obligations or other liabilities other than Purchase Money Indebtedness permitted pursuant to Section 3.1(e)(iii) shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers Borrower and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (iiA) Loans made hereunder, and (B) ordinary course trade payables, accrued expenses and other Indebtedness of the Target to the extent permitted by Section 3.1 or 3.4;
(v) (A) both before or after giving effect to the sum proposed Permitted Acquisition on a Pro Forma Basis, Borrower is in compliance with the financial covenants set forth in Sections 4.2 and 4.3, and (B)(1) if either before or after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio of all amounts payable more than 2.0 to 1.0, the aggregate consideration (I) in connection with any single Permitted Acquisition shall not exceed $20,000,000, (II) in connection with Permitted Acquisitions in any Fiscal Year shall not exceed $30,000,000 and (III) in connection with all Permitted Acquisitions since the Restatement Date shall not exceed $75,000,000, or (including2) if both before and after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, without duplicationBorrower has a pro forma Leverage Ratio of not more than 2.0 to 1.0, the aggregate consideration (I) in connection with any single Permitted Acquisition shall not exceed $30,000,000, and (II) in connection with all earn outsPermitted Acquisitions since the Restatement Date shall not exceed $100,000,000, working capital adjustmentsin each case, excluding up to $15,000,000 per acquisition of consideration paid in the form of Holdings Common Stock and including all transaction costs and all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers Borrower and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;.
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, Agent will be granted Liens a first priority perfected Lien (to the extent required by the Collateral Documents and subject to Permitted Encumbrances) in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all the assets and Stock of the assets Target as and to the extent required by Section 2.7(c), 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;
(viii) concurrently with delivery of the Targetnotice referred to in clause (i) above, Borrower shall have delivered to each Co-Administrative Agent, in form and substance reasonably satisfactory to Co-Administrative Agents:
(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 Required Availability for the 60-day period preceding the consummation of such Permitted Acquisition would have exceeded $5,000,000 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 Required Availability of $5,000,000 shall continue for at least 60 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 Holdings and its Subsidiaries would have been in compliance with the financial covenants set forth in Section 4 for the four quarter period reflected in the Compliance, Pricing, and Excess Cash Certificate most recently delivered to Agent pursuant to Section 4.4(l) 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) solely in respect of any Permitted Acquisition where the total aggregate consideration exceeds $10,000,000, projections covering the 1 year period commencing on the date of such Permitted Acquisition setting forth in form and substance reasonably satisfactory to Co-Administrative Agents the anticipated results of operations of the Stock Target and Holdings and its Subsidiaries (the “Acquisition Projections”) based upon historical financial data for the Target of a recent date reasonably satisfactory to Co-Administrative Agents; which Acquisition Projections shall evidence that on a pro forma basis, after giving effect to any add-backs approved by Co-Administrative Agents, (i) EBITDA for the four quarter period immediately following such Permitted Acquisition will be at least $1 greater than if such acquisition had not occurred and (ii) Holdings and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Section 4 for the 1 year period thereafter;
(C) a certificate of the chief financial officer (or another officer acceptable to Co-Administrative Agents) of Borrower to the effect that: (v) Holdings and its Subsidiaries when taken as a whole will be Solvent upon the consummation of the Permitted Acquisition; (w) the Acquisition Pro Forma fairly presents in all material respects 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 a reasonable estimate 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 Target and (z) Holdings and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a stock purchase or merger resulting in manner similar to that which would have been conducted by a new Subsidiaryprudent purchaser of a comparable business and the results of which investigation were delivered to each Co-Administrative Agent;
(ix) at least five (5) Business Days prior to the date of such Permitted Acquisition, each Co-Administrative Agent shall have been pledged received, in form and substance reasonably satisfactory to AgentCo-Administrative Agents, copies of the acquisition agreement and related agreements and instruments, and Target all opinions, certificates, lien search results, copies of all environmental reports and memoranda related thereto to the extent prepared in connection with such Permitted Acquisition, and other documents reasonably requested by Co-Administrative Agents, including those specified in Section 2.7; and
(in a Stock purchase x) at the time of such Permitted Acquisition and after giving effect thereto, no Default or merger resulting in a new Subsidiary) shall have become a Guarantor Event of Default has occurred and a Credit Party hereunder;is continuing.
Appears in 1 contract
Samples: Credit Agreement (TNS Inc)
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor EQR shall not and shall not cause enter into any merger or permit their Subsidiaries to directly or indirectly: consolidation, unless (i) amendthe Borrower or EQR is the surviving entity, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter the entity which is merged into any transaction Borrower or EQR is predominantly in the commercial real estate business, (iii) the creditworthiness of merger the surviving entity's long term unsecured debt or consolidation exceptimplied senior debt, upon as applicable, is not less lower than five Borrower's or EQR's creditworthiness two months immediately preceding such merger, and (5iv) Business Days’ prior written notice to Agent (or, in the case of Canadian any merger where the then fair market value of the assets of the entity which is merged into the Borrower and its Subsidiaries, Canadian Agent), any Whollyor EQR is twenty-Owned Subsidiary five percent (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity25%) or more of the Borrower's or EQR's then Gross Asset Value following such merger, the Administrative Agent's consent thereto in writing, which consent shall not be merged unreasonably withheld, conditioned or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) delayed. Neither the Borrower nor EQR shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the foregoingAdministrative Agent's consent, which shall not be unreasonably withheld. EQR shall not amend its declaration of trust, by-laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Administrative Agent's consent, which shall not be unreasonably withheld.
(c) The Borrower shall deliver to Administrative Agent copies of all amendments to its agreement of limited partnership or a Domestic Whollyto EQR's declaration of trust, by-Owned Subsidiary thereof that is a Credit Party may acquire all laws, or substantially all of other organizational documents no less than ten (10) days after the assets effective date of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;amendment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Equity Residential Properties Trust)
Restriction on Fundamental Changes. Change its name, enter into any merger, consolidation, reorganization, or recapitalization, or reclassify its partnership interests (whether limited or general) or membership interests, as applicable, or convey, sell, assign, lease, transfer, or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or Assets, whether now owned or hereafter acquired except:
(a) The Credit Parties shall not and shall not cause any Loan Party or permit their Subsidiaries to directly any Subsidiary of any Loan Party may sell or indirectly: dispose of Assets in accordance with the provisions of Section 6.6 hereof;
(ib) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five thirty (530) Business Days’ days prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent)Lender, any Wholly-Owned Loan Party or Subsidiary of any Loan Party may change its name;
(other than Canadian c) any Subsidiary of a Borrower may merge with a Borrower; provided that such Borrower shall be the continuing or surviving Person in connection with such merger;
(d) any Subsidiary of a Borrower may be merged with or into such Borrower (providedmerged, that such Borrower is the surviving entity) or be merged amalgamated or consolidated with or into any other Wholly-Owned Subsidiary one or more Subsidiaries of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Party.
(b) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof provided that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent if any wholly-owned, directly or indirectly, Subsidiary is merging, consolidating, combining or amalgamating with or into another Subsidiary, the continuing or surviving entity shall receive at least fourteen (14) days’ prior written notice of be, immediately after such proposed Permitted Acquisitionmerger, which notice shall include amalgamation, consolidation or combination, a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business wholly-owned, direct or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurredindirect, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted AcquisitionSubsidiary, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunderif such merger, amalgamation or consolidation involves a Borrower, such Borrower shall be the continuing or surviving entity;
(ve) the sum any Subsidiary of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens Loan Party (other than Permitted Encumbrancesa Borrower) may sell or dispose of all or any part of its assets (whether as a contribution to capital, dividend, upon voluntary liquidation or otherwise), provided that the transferee is a Loan Party (whether at the time or as a result of the transfer);
(viif) (A) prior to any Borrower or within ten (10 ) Business Days after the closing of any U.S. its Subsidiary that is a Loan Party may consummate a Permitted Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Silvercrest Asset Management Group Inc.)
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the its business or property, whether now or hereafter acquired, except (i) as otherwise permitted under Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, PROVIDED, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary CKE SIXTH AMENDED AND RESTATED CREDIT AGREEMENT merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Borrower in a Permitted Acquisition permitted hereunder may merge with the Borrower or any wholly-owned Subsidiary of the Borrower, PROVIDED, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, PROVIDED, FURTHER, that in each case, (A) any such wholly-owned Subsidiary of the Borrower which is the surviving corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (B) the Borrower shall give the Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Person other than another Credit PartySubsidiary so merged and (D) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto or as a result thereof.
(b) Notwithstanding Borrower shall not and shall not permit any of its Subsidiaries to, amend its certificate of incorporation or by-laws (or other relevant organizational and governing documents) in any manner adverse to the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all interests of the assets of any Person (a “Target”) Agent or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Lenders.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties Neither ERP nor EQR shall not and shall not cause enter into any merger or permit their Subsidiaries to directly or indirectly: consolidation, unless (i) amendeither (x) ERP or EQR is the surviving entity, modify or waive (y) the individuals constituting EQR’s Board of Trustees immediately prior to such merger or consolidation represent a majority of the surviving entity’s Board of Directors or Board of Trustees after such merger or consolidation, and (ii) the entity which is merged with ERP or EQR is predominantly in the commercial real estate business. The Borrower shall not enter into any term merger or provision consolidation with any Person, other than a merger or consolidation with and into ERP, a Wholly-Owned Domestic Subsidiary or an Eligible REIT Subsidiary; provided, that (i) ERP, such Wholly-Owned Domestic Subsidiary or such Eligible REIT Subsidiary, as the case may be, assumes all of the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to documentation reasonably satisfactory to the Administrative Agent, (ii) ERP has supplied such documentation and other evidence as is reasonably requested by the Administrative Agent or any Bank in order for the Administrative Agent or such Bank to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations with respect to any such Wholly-Owned Domestic Subsidiary or Eligible REIT Subsidiary, as the case may be, where the necessary information is not already available to the Administrative Agent or such Bank, (iii) ERP, such Wholly-Owned Subsidiary or such Eligible REIT Subsidiary, as the case may be, shall have executed and delivered to the Administrative Agent a new Note for the account of each Bank requesting a new Note, and, upon the execution and delivery of any such Note, such Bank agrees to promptly return any existing Note payable to such Bank and (iv) in the case of any Wholly-Owned Domestic Subsidiary or Eligible REIT Subsidiary, the Administrative Agent shall have received all documents required to be delivered pursuant to Section 3.1 with respect to a Qualified Subsidiary, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent. Following any such merger or consolidation, each reference in this Agreement and the other Loan Documents to the “Borrower” shall be deemed to refer to ERP, such Wholly-Owned Domestic Subsidiary or such Eligible REIT Subsidiary, as the case may be, which is the survivor of such merger or consolidation.
(b) The Borrower shall not amend its limited liability company agreement or other organizational documentsdocuments in any manner that would have a Material Adverse Effect without the Administrative Agent’s consent, including which shall not be unreasonably withheld. ERP shall not amend its articles agreement of incorporationlimited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the Administrative Agent’s consent, certificates which shall not be unreasonably withheld. EQR shall not amend its declaration of designations pertaining to preferred stocktrust, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders other organizational documents in any material respect unless required by law; providedmanner that would have a Material Adverse Effect without the Administrative Agent’s consent, that, which shall not be unreasonably withheld. No Qualified Subsidiary shall amend its organizational documents in any manner that would have a Material Adverse Effect without the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business DaysRequired Banks’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Partyconsent.
(c) The Borrower shall deliver to Administrative Agent copies of all amendments to the Borrower’s limited liability company agreement, to ERP’s agreement of limited partnership or to EQR’s declaration of trust, by-laws, or other organizational documents simultaneously with the first delivery of financial statements referred to in Sections 5.1(a) or (b) Notwithstanding above following the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets effective date of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;amendment.
Appears in 1 contract
Samples: Term Loan Agreement (Erp Operating LTD Partnership)
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (ia) except as described on SCHEDULE 5.6, amend, modify or waive any term or provision of its organizational documentsdocuments in a manner adverse to the Lenders, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a any manner which would aversely affect adverse to the Agent and Lenders or Lenders, or cause any equity interest in any material respect limited liability company to be certificated, unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (iib) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ Days prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Whollywholly-Owned owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, PROVIDED that such Borrower is the surviving entity) or be merged or consolidated any other wholly-owned Subsidiary of Borrower (provided that, in the case of any such merger of any Domestic Subsidiary with or into any other Wholly-Owned a Foreign Subsidiary, the Domestic Subsidiary of such Borroweris the surviving entity); (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (ivd) acquire by purchase or otherwise all or any substantial part of the Stock, business or assets of any Person other than another Credit Party.
(b) Person. Notwithstanding the foregoing, any Borrower (or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party Holdings, so long as contemporaneously therewith, all assets so acquired are transferred to Borrower contemporaneous with the closing of such acquisition), may acquire all or substantially all of the assets or Stock of any Person (a “Target”the "TARGET") or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):"PERMITTED ACQUISITION") subject to the satisfaction of each of the following conditions:
(i) Agent shall receive at least fourteen (14) days’ 30 Business Days' prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business business, or those assets of a business business, of the type engaged in by Borrowers Borrower as of the Closing Date Date, and which business would not subject Agent or otherwise permitted any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under Section 3.9this 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;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s 's board of directors;
(iv) no additional Indebtedness or Indebtedness, Guaranteed Indebtedness, Contingent Obligations or other liabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers Borrower and Target after giving effect to such Permitted Acquisition, except (iA) industrial revenue bondsordinary course trade payables and accrued expenses and (B) Indebtedness otherwise permitted under SECTION 5.1(f) or 5.1(g) of the Target not to exceed $8,000,000 in the aggregate for any Permitted Acquisition so long as on a pro forma basis, pollution control bonds Holdings and other tax-exempt financingits Subsidiaries would have had a Leverage Ratio and Senior Leverage Ratio of less than or equal to the Leverage Ratio and Senior Leverage Ratio, Capital Leasesrespectively, of Holdings and installment purchase Indebtedness, its Subsidiaries for the four quarter period ending on the last day of the month immediately preceding the month in which such proposed Permitted Acquisition is to be consummated (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day such period); in each case secured solely by Fixtures, Equipment and/or Real Estate to the extent no Default or Event of Default has occurred and any accessions thereto is continuing or proceeds thereof and related property, and not incurred in anticipation of would result after giving effect to such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunderAcquisition;
(v) the sum of all amounts payable in connection with all any Permitted Acquisitions Acquisition (including, without duplicationincluding the purchase price, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers Borrower and Target) shall not exceed (1) $100,000,000 8,000,000 and the sum of such amounts payable in connection with all Permitted Acquisitions shall not exceed $32,000,000, and the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year portion thereof allocable to goodwill and (B) $50,000,000 in the aggregate intangible assets for all such Permitted Acquisitions during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectivelyhereof shall not exceed $16,000,000;
(vi) unless otherwise consented to in writing by Agent, the Target shall not have negative EBITDA for the trailing twelve-month period greater than $1,000,000 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);
(viiviii) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, Agent will be granted Liens a first priority perfected Lien (subject to Permitted Encumbrances) in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets and Stock of the Target, all and Holdings and Borrower and the Target shall comply with SECTION 4.7 and shall otherwise have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the Stock of Target notice referred to in CLAUSE (in a stock purchase or merger resulting in a new SubsidiaryI) above, Borrower shall have been pledged 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 Leverage Ratio and Senior Leverage Ratio with a numerator (or equivalent thereof) one quarter (0.25) less than otherwise permitted (for example, if the permitted Leverage Ratio is less than or equal 3.00 to 1.00, Holdings and its Subsidiaries must have a Leverage Ratio of less than or equal to 2.75 to 1.00) for the four quarter period ending on the last day of the month immediately preceding the month in which such proposed Permitted Acquisition is to be consummated (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 $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 (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 SECTION 6 for the four quarter period reflected in the Compliance and Excess Cash Flow Certificate most recently delivered to Agent pursuant to SECTION 6.2(o) 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 (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 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 SECTION 6 for the 3-year period thereafter; and (z) Holdings and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a Stock purchase 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 merger resulting in a new Subsidiary) prior to the date of such Permitted Acquisition, Agent shall have become a Guarantor received, in form and a Credit Party hereunder;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 4.6; 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
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (ia) amend, modify or waive in any manner adverse to any Lender any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-by laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (iib) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrowerconsolidation; (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (ivd) acquire by purchase or otherwise all or any a substantial part of the business or assets of any Person other than another Credit Party.Person, except that:
(bi) Notwithstanding on the foregoingClosing Date, any Xxxx Manufacturing Co., Inc. may merge with and into the Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party with the Borrower as the surviving Person,
(ii) Borrower may acquire all or substantially all of the assets or all of the Stock of any Person (a “the "Target”") or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “"Permitted Acquisition”):") subject to the satisfaction of each of the following conditions:
(iA) Agent shall receive at least fourteen (14) days’ 30 Business Days' prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iiiB) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s 's board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(vC) the sum of all amounts payable in connection with all Permitted Acquisitions (includingStock, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and and/or assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(viiD) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, the Borrower shall have complied with Section 2.8 in respect of the Target and acquired assets;
(E) concurrently with delivery of the notice referred to in clause (i) above, Borrower 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 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. The "Acquisition Projections" shall be the updated versions of the most recently delivered Projections covering the three-year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections, based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisitions;
(F) on or prior to the date of such Permitted Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and Target related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent;
(G) in the event that such Permitted Acquisition constitutes the acquisition of Stock in a Stock purchase Target that will become upon consummation thereof a Foreign Subsidiary or merger resulting an entity that is not and is not required to be a Credit Party, the total consideration paid for such Target and all prior Targets that are Foreign Subsidiaries and are not and are not required to be Credit Parties (including any Acquired Debt and, without duplication, the fair market value of any property of the Target subject to Liens described in clause (iii) of the definition of Permitted Encumbrance and the amount of any earn-out or similar obligations incurred with respect to such Permitted Acquisition), shall not exceed, together with outstanding guarantees and Guaranteed Indebtedness described in Section 3.1(b)(x), outstanding intercompany Indebtedness described in Section 3.1(b)(vii)(e) and other Pemitted Investments of the type described in clause (i)(y) of such term, $5,000,000; and
(H) 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, Inventory, M&E and Real Estate of the Target shall not be included in Eligible Accounts, Eligible Inventory, Eligible M&E or Eligible Real Estate without the prior written consent of Agent and Requisite Lenders (it being understood that Agent will in the ordinary course of business undertake its customary efforts to assess the value of such Collateral for the purposes of determining its eligibility (or lack of eligibility) in the Borrowing Base).
(iii) any Wholly-Owned Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving Person) or with or into any Subsidiary Guarantor (provided that the Subsidiary Guarantor shall be the continuing or surviving Person);
(iv) any Wholly-Owned Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Wholly-Owned Subsidiary; (provided that if the transferor in such a new Subsidiarytransaction is a Subsidiary Guarantor, then the transferee must either be the Borrower or a Subsidiary Guarantor);
(v) any Wholly-Owned Subsidiary of the Borrower may merge into the Person such Wholly-Owned Subsidiary was formed to acquire in connection with a Permitted Acquisition;
(vi) any Subsidiary of the Borrower may wind-up into the Borrower or any Subsidiary of the Borrower; provided that if the Subsidiary being wound up is a Guarantor, it may be wound up into the Borrower or any Subsidiary that is, or will become concurrently with the transaction, a Guarantor; and
(vii) Holdings may merge with or into or consolidate with, or wind-up or liquidate into or otherwise transfer all of its assets to, a parent of Holdings or a Subsidiary of a parent of Holdings, so long as (i) the Person surviving such transaction, if not Holdings, shall have become a Guarantor and assume all of Holdings' covenants and obligations hereunder pursuant to a Credit Party hereunder;joinder agreement in form and substance reasonably satisfactory to the Agent (and each reference to Holdings in this Agreement or any Loan Document shall thereafter be deemed to refer and apply to such surviving person), (ii) after giving effect to such transactions, Holdings and its Subsidiaries shall be in compliance with the covenants set forth in Sections 2, 3 and 4 hereto (iii) the representations and warranties contained in Section 5 that are subject to materiality or Material Adverse Effect qualifications shall be true, correct and complete in all respects and all representations and warranties that are not subject to materiality or Material Adverse Effect qualification are true, correct and complete in all material respects, after giving effect to such transaction, (iv) no Change of Control shall have occurred as a result of such transaction, (v) on or prior to the date of such transaction, Agent shall have received all amendments, certificates and filings necessary or desirable in the Agent's sole discretion to continue the Lien on all of Borrower's stock and other "Pledged Collateral" under the Pledge Agreement and such surviving Person shall have joined the Pledge Agreement as a pledgor in a manner acceptable to Agent (vi) on or prior to the date of such transaction, Agent shall have received such legal opinions as it may reasonably request; provided that for the purposes of sub-clauses (ii) and (iii) of this Section 3.6 and any test related thereto, any reference to Holdings shall be deemed to refer to the Person surviving such transaction, if not Holdings.
Appears in 1 contract
Samples: Credit Agreement (RathGibson Inc)
Restriction on Fundamental Changes. (a) The Credit Parties Borrower shall not not, and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documentsSubsidiaries to, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the its business or property, whether now or hereafter acquired, except (i) as otherwise permitted under Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower may merge into or convey, sell, lease or transfer all or substantially all of its assets to, the Borrower or any other Domestic Subsidiary of the Borrower, provided, that in any such merger involving the Borrower, the Borrower shall be the surviving corporation and any such Subsidiary merging into the Borrower or any such Domestic Subsidiary shall be Solvent, (iii) any Solvent Person acquired by the Borrower or a Subsidiary of the Borrower in a Permitted Acquisition permitted hereunder may merge with the Borrower or any wholly-owned Subsidiary of the Borrower, provided, that in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, provided, that in each case, (A) any such wholly-owned Subsidiary of the Borrower which is the surviving corporation of any such merger or to which any business or property is so transferred shall be a party to the Guaranty and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (B) the Borrower shall give the Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, (C) the Agent and Lenders shall not be deemed to have released their security interest in any assets so transferred or in any Subsidiary or the assets of any Person other than another Credit PartySubsidiary so merged and (D) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto or as a result thereof.
(b) Notwithstanding Borrower shall not and shall not permit any of its Subsidiaries to, amend its certificate of incorporation or by-laws (or other relevant formation document) in any manner adverse to the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all interests of the assets of any Person (a “Target”) Agent or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;Lenders.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amendChange its name, modify or waive any term or provision change the nature of its organizational documentsbusiness from that conducted by the Loan Parties on the date of this Agreement (and other ancillary businesses reasonably related thereto), including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger merger, consolidation, reorganization, or consolidation exceptrecapitalization, upon not less than five or reclassify its partnership interests (5whether limited or general) Business Days’ prior written notice to Agent (oror membership interests, as applicable, or convey, sell, assign, lease, transfer, or otherwise dispose of, in the case one transaction or a series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the its business or assets Assets, whether now owned or hereafter acquired except:
(a) Borrower or any of any Person other than another Credit Party.its Subsidiaries may sell Assets in accordance with the provisions of Section 6.7 hereof;
(b) Notwithstanding the foregoing, any [Intentionally omitted.]
(c) Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party any of its Subsidiaries may acquire all offer or substantially all sell its membership interests to its employees so long as the aggregate voting power of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) membership interests purchased by such employees does not exceed 49% of the outstanding stock aggregate voting power of the membership interests of each of Borrower or any Target or cause any Target to be merged with it or liquidatedof its Subsidiaries, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):as applicable;
(id) Agent shall receive at least fourteen (14) days’ upon 10 days prior written notice of such proposed Permitted Acquisitionto Lender, which notice shall include a reasonably detailed description of such proposed Permitted AcquisitionBorrower or any its Subsidiaries may change its name;
(iie) such Permitted Acquisition shall only involve assets comprising Any Subsidiary of Borrower may merge into another Subsidiary, any Subsidiary may merge with a business or those assets Guarantor, as long as the Guarantor is the surviving entity and Borrower and JMP Holdings, Inc. may merge, so long as (x) a Change of a business of Control Event does not result therefrom and (y) the type engaged in by Borrowers as of survivor thereof assumes Borrower’s obligations under the Closing Date or otherwise permitted under Section 3.9Loan Documents and agrees to be bound hereby and thereby;
(iiif) Any Guarantor or JMP Securities may enter into a recapitalization with respect to its membership interests or Securities, so long as Borrower remains the managing member of such Permitted Acquisition shall be consensual Subsidiary and shall have been approved by holds a majority of the Target’s board of directors;voting interest in such Subsidiary; and
(ivg) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers Newco and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds its Subsidiaries may issue and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable sell membership interests in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;equity transactions.
Appears in 1 contract
Samples: Credit Agreement (JMP Group Inc.)
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amendChange its name, modify or waive any term or provision change the nature of its organizational documentsbusiness from that conducted by the Loan Parties on the date of this Agreement (and other ancillary businesses reasonably related thereto), including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger merger, consolidation, reorganization, or consolidation exceptrecapitalization, upon not less than five or reclassify its partnership interests (5whether limited or general) Business Days’ prior written notice to Agent (oror membership interests, as applicable, or convey, sell, assign, lease, transfer, or otherwise dispose of, in the case one transaction or a series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the its business or assets Assets, whether now owned or hereafter acquired except:
(a) Borrower or any of any Person other than another Credit Party.its Subsidiaries may sell Assets in accordance with the provisions of Section 6.7 hereof;
(b) Notwithstanding the foregoing, any [Intentionally omitted.]
(c) Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party any of its Subsidiaries may acquire all offer or substantially all sell its membership interests to its employees so long as the aggregate voting power of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) membership interests purchased by such employees does not exceed 49% of the outstanding stock aggregate voting power of the membership interests of each of Borrower or any Target or cause any Target to be merged with it or liquidatedof its Subsidiaries, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):as applicable;
(id) Agent shall receive at least fourteen (14) days’ upon 10 days prior written notice of such proposed Permitted Acquisitionto Agent, which notice shall include a reasonably detailed description of such proposed Permitted AcquisitionBorrower or any its Subsidiaries may change its name;
(iie) Any Subsidiary of Borrower may merge into another Subsidiary, any Subsidiary may merge with a Guarantor, as long as the Guarantor is the surviving entity and Borrower and JMP Holdings, Inc. may merge, so long as (x) a Change of Control Event does not result therefrom and (y) the survivor thereof assumes Borrower’s obligations under the Loan Documents and agrees to be bound hereby and thereby; and
(f) Any Guarantor or JMP Securities may enter into a recapitalization with respect to its membership interests or Securities, so long as Borrower remains the managing member of such Permitted Acquisition shall only involve assets comprising Subsidiary and holds a business or those assets of a business majority of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired voting interest in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;.
Appears in 1 contract
Samples: Credit Agreement (JMP Group Inc.)
Restriction on Fundamental Changes. (a) The Credit Parties Holdings and Borrower shall not and shall not cause or permit their Borrower’s Subsidiaries to directly or indirectly: (ia) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; providedlaw except if such amendment, thatmodification, the Related Transactions, or waiver could not reasonably be expected to have an adverse effect on Agent or Lenders or affect in any respect any Liens in favor of Agent and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedLenders; (iib) enter into any transaction of merger or consolidation except pursuant to a Permitted Acquisition and except, upon not less than five (5) Business Days’ Days prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into any wholly-owned Subsidiary of Borrower so long as if either such Borrower (providedSubsidiary was a Guarantor prior to such merger, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borroweris a Guarantor; (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (ivd) acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person other than another Credit Party.
(b) except pursuant to a Permitted Acquisition. Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets or Stock of any Person (a the “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):) subject to the satisfaction of each of the following conditions or waiver thereof by the Requisite Lenders:
(i) Agent shall receive at least fourteen (14) days15 Business Days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business (a) of the type engaged in by Borrowers Borrower as of the Closing Date, (b) substantially similar to the business engaged in by Borrower as of the Closing Date or otherwise permitted (c) that transports on behalf of third parties data communications and which 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 Section 3.9this 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;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Indebtedness, Guaranteed Indebtedness, Contingent Obligations or other liabilities other than Purchase Money Indebtedness permitted pursuant to Section 3.1(c)(iii) shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers Borrower and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (iiA) Loans made hereunder, and (B) ordinary course trade payables, accrued expenses and other Indebtedness of the Target to the extent permitted by Section 3.1 or 3.4;
(v) both before or after giving effect to the sum proposed Permitted Acquisition on a Pro Forma Basis, Borrower is in compliance with the financial covenants set forth in Sections 4.2, 4.3 and 4.4 and (1) if either before or after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio of all amounts payable more than 1.5 to 1.0, the aggregate consideration (A) in connection with any single Permitted Acquisition shall not exceed $15,000,000, (B) in connection with Permitted Acquisitions in any Fiscal Year shall not exceed $20,000,000 and (C) in connection with all Permitted Acquisitions since the Closing Date shall not exceed $40,000,000 or (including2) if both before and after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, without duplicationBorrower has a pro forma Leverage Ratio of not more than 1.5 to 1.0, the aggregate consideration (A) in connection with any single Permitted Acquisition shall not exceed $25,000,000, and (B) in connection with all earn outsPermitted Acquisitions since the Closing Date shall not exceed $60,000,000, working capital adjustmentsin each case, excluding up to $15,000,000 per acquisition of consideration paid in the form of Holdings Common Stock and including all transaction costs and all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers Borrower and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, Agent will be granted Liens a first priority perfected Lien (subject to Permitted Encumbrances) in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all the assets and Stock of the assets Target in each case to the extent set forth in Section 2.7(c), 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;
(viii) concurrently with delivery of the Targetnotice referred to in clause (i) above, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) Borrower shall have been pledged 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 Borrowing Availability for the 60-day period preceding the consummation of such Permitted Acquisition would have exceeded $3,000,000 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 $3,000,000 shall continue for at least 60 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 Holdings and its Subsidiaries would have been in compliance with the financial covenants set forth in Section 4 for the four quarter period reflected in the Compliance, Pricing, and Excess Cash Certificate most recently delivered to Agent pursuant to Section 4.5(m) 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) solely in respect of any Permitted Acquisition where the total aggregate consideration exceeds $10,000,000, projections covering the 1 year period commencing on the date of such Permitted Acquisition setting forth in form and substance reasonably satisfactory to the Agent the anticipated results of operations of the Target and Holdings and its Subsidiaries (the “Acquisition Projections”) based upon historical financial data for the Target of a recent date reasonably satisfactory to Agent; which Acquisition Projections shall evidence that on a pro forma basis, after giving effect to any add-backs approved by Agent, (i) EBITDA for the four quarter period immediately following such Permitted Acquisition will be at least $1 greater than if such acquisition had not occurred and (ii) Holdings and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Section 4 for the 1 year period thereafter;
(C) a certificate of the chief financial officer (or another officer acceptable to Agent) of Borrower to the effect that: (v) Holdings and its Subsidiaries when taken as a whole will be Solvent upon the consummation of the Permitted Acquisition; (w) the Acquisition Pro Forma fairly presents in all material respects 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 a reasonable estimate 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 Target and (z) Holdings and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a Stock purchase or merger resulting in manner similar to that which would have been conducted by a new Subsidiaryprudent purchaser of a comparable business and the results of which investigation were delivered to Agent;
(ix) at least five (5) Business Days prior to the date of such Permitted Acquisition, Agent shall have become a Guarantor received, in form and a Credit Party hereunder;substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results, copies of all environmental reports and memoranda related thereto to the extent prepared in connection with such Permitted Acquisition, and other documents reasonably requested by Agent, including those specified in Section 2.7; 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
Samples: Credit Agreement (TNS Inc)
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (i) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect that is adverse to Lenders, unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ Days prior written notice to Agent Agent, (or, in the case A) any wholly-owned Subsidiary of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, provided that such Borrower is the surviving entity) or be merged or consolidated with or into any other Whollywholly-Owned owned Subsidiary of Borrower (which must be a Domestic Subsidiary of Borrower if the Subsidiary being merged is a Domestic Subsidiary of Borrower) and (B) Borrower may become a wholly-owned Subsidiary of a corporation organized under the laws of any State of the United States of America so long as (x) no Change of Control results, (y) the new parent of Borrower is a newly formed single-purpose entity and (z) the new parent guarantees the Obligations and secures the Obligations with a pledge in favor of Agent of all of the Stock of Borrower and a general security agreement in favor of Agent over all of its assets, in each case, in form substantially similar to the Loan Documents executed concurrently herewith and delivers to Agent such Borrowerlegal opinions as Agent shall have requested in connection therewith; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), except that any Whollywholly-Owned owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up liquidate or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrowerdissolve; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit PartyPerson.
(b) Notwithstanding the foregoing, any Borrower or a wholly-owned Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets or Stock of any Person (a the “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):) subject to the satisfaction of each of the following conditions:
(i) Agent shall receive at least fourteen (14) 30 days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising located in the United States and used for or by a business or those assets of a business of the type Target engaged in by Borrowers as of the Closing Date or otherwise businesses permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness, Guaranteed Indebtedness or Contingent Obligations shall be incurredincurred in connection with such Permitted Acquisition, assumed except (A) Indebtedness, Guaranteed Indebtedness and Contingent Obligations permitted under the terms of this Agreement and (B) unsecured Indebtedness of the Target to the extent no Default or otherwise be reflected on a consolidated balance sheet Event of Borrowers Default has occurred and Target is continuing or would result after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, including all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers Borrower and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, 30,000,000 for International Acquisitions and Canadian Acquisitions collectivelyall Permitted Acquisitions;
(vi) 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 after taking into account cost add-backs 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)) and if Stock of Target is acquired, Target shall constitute upon acquisition a wholly-owned Domestic Subsidiary;
(viiviii) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, Agent will be granted Liens a first priority perfected Lien (subject to Permitted Encumbrances) in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets and Stock of the Target, all and Borrower and the Target shall have executed such documents (including a Guaranty and Security Agreement) and taken such actions as may be required by Agent in connection therewith;
(ix) concurrently with delivery of the Stock of Target notice referred to in clause (in a stock purchase or merger resulting in a new Subsidiaryi) above, Borrower shall have been pledged 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 and incurrence of all Indebtedness and Liens in connection therewith, and such Acquisition Pro Forma shall reflect that (x) average daily Borrowing Availability for the 30-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 Loans funded and all Indebtedness and Liens incurred 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 Acquisitions;
(B) updated versions of the most recently delivered Business Plan covering the 3 year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Business Plan (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition an indicating anticipated monthly Borrowing Availability during such 3 year period
(C) a certificate of the chief financial officer of Borrower to the effect that: (w) Borrower (after taking into consideration all rights of contribution and indemnity Borrower has against 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 Borrower and its Subsidiaries (on a consolidated basis) as of the date thereof after giving effect to the Permitted Acquisition it being understood that to the extent that such certification is based on the financial statements or condition of Target, such certification may be made upon such chief financial officer’s best knowledge; and (y) 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 Stock purchase 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;
(D) such environmental assessments with results satisfactory to Agent and conducted by a Person reasonably satisfactory to Agent with respect to real property owned, operated or merger resulting in a new Subsidiary) leased by Target as Agent shall have become a Guarantor required; and
(E) copies of all material regulatory and a Credit Party hereunderthird party approvals required for consummation of such Permitted Acquisition;
(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 Section 2.6; 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.
(c) Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not be included in Eligible Accounts or Eligible Inventory without the prior written consent of Agent not to be unreasonably withheld.
Appears in 1 contract
Samples: Credit Agreement (Southern Construction Products Inc)
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor EOPT shall not and shall not cause enter into any merger or permit their Subsidiaries to directly or indirectlyconsolidation without obtaining the prior written consent thereto in writing of the Majority Banks, unless the following criteria are met: (i) amendeither (x) the Borrower or EOPT is the surviving entity, modify or waive (y) the individuals constituting EOPT’s board of directors or board of trustees immediately prior to such merger or consolidation represent a majority of the surviving entity’s board of directors or board of trustees after such merger or consolidation; and (ii) the entity which is merged into Borrower or EOPT is predominantly in the commercial real estate business. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the Real Property Assets in the ordinary course of business.
(b) The Borrower shall not amend its agreement of limited partnership or other organizational documents in any term manner that would have a Material Adverse Effect without the Majority Banks’ consent, which shall not be unreasonably withheld, conditioned or provision delayed. Without limitation of the foregoing, no Person shall be admitted as a general partner of the Borrower other than EOPT. EOPT shall not amend its organizational documents, including its articles declaration of incorporation, certificates of designations pertaining to preferred stocktrust, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders other organizational documents in any material respect unless required manner that would have a Material Adverse Effect without the Majority Banks’ consent, which shall not be unreasonably withheld, conditioned or delayed. No Qualified Borrower shall amend its organizational documents in any manner that would have a Material Adverse Effect without the Majority Banks’ consent. The Borrower shall not make any “in-kind” transfer of any of its property or assets to any of its constituent partners if such transfer would result in an Event of Default under Section 6.1(b) by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter into any transaction of merger or consolidation except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) reason of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part breach of the business or assets provisions of any Person other than another Credit PartySection 5.8.
(c) Subject to the provisions of clause (b) Notwithstanding above, the foregoingBorrower shall deliver to Administrative Agent copies of all amendments to its agreement of limited partnership or to EOPT’s declaration of trust, any Borrower by-laws, or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of other organizational documents no less than ten (10) days after the assets effective date of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;amendment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Eop Operating LTD Partnership)
Restriction on Fundamental Changes. (a) The Credit Parties Neither the Borrower nor EQR shall not and shall not cause enter into any merger or permit their Subsidiaries to directly or indirectly: consolidation, unless (i) amendthe Borrower or EQR is the surviving entity, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (ii) enter the entity which is merged into any transaction Borrower or EQR is predominantly in the commercial real estate business, (iii) the creditworthiness of merger the surviving entity's long term unsecured debt or consolidation exceptimplied senior debt, upon as applicable, is not less lower than five Borrower's or EQR's creditworthiness two months immediately preceding such merger, and (5iv) Business Days’ prior written notice to Agent (or, in the case of Canadian any merger where the then fair market value of the assets of the entity which is merged into the Borrower and its Subsidiaries, Canadian Agent), any Whollyor EQR is twenty-Owned Subsidiary five percent (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity25%) or more of the Borrower's or EQR's then Combined Asset Value, the Lead Agent and Co-Lead Agent consent thereto in writing, which consent shall not be merged unreasonably withheld, conditioned or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) delayed. Neither the Borrower nor EQR shall liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (ordiscontinue its business or convey, lease, sell, transfer or otherwise dispose of, in the case one transaction or series of Canadian Borrower and its Subsidiariestransactions, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part substantially all of its business or property, whether now or hereafter acquired. Nothing in this Section shall be deemed to prohibit the sale or leasing of portions of the business or assets Real Property Assets in the ordinary course of any Person other than another Credit Partybusiness.
(b) Notwithstanding The Borrower shall not amend its agreement of limited partnership or other organizational documents in any manner that would have a Material Adverse Effect without the foregoingLead Agent's and Co-Lead Agent's consent, which shall not be unreasonably withheld. EQR shall not amend its declaration of trust, by- laws, or other organizational documents in any manner that would have a Material Adverse Effect without the Lead Agent's and Co-Lead Agent's consent, which shall not be unreasonably withheld.
(c) The Borrower shall deliver to Lead Agent copies of all amendments to its agreement of limited partnership or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all to EQR's declaration of trust, by- laws, or substantially all of other organizational documents no less than ten (10) days after the assets effective date of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;amendment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Erp Operating LTD Partnership)
Restriction on Fundamental Changes. (a) The Credit Parties Holdings and Borrower shall not and shall not cause or permit their Borrower’s Subsidiaries to directly or indirectly: (ia) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; providedlaw except if such amendment, thatmodification, the Related Transactions, or waiver could not reasonably be expected to have an adverse effect on Agent or Lenders or affect in any respect any Liens in favor of Agent and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedLenders; (iib) enter into any transaction of merger or consolidation exceptexcept (i) pursuant to a Permitted Acquisition, or (ii) upon not less than five (5) Business Days’ Days prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into any wholly-owned Subsidiary of Borrower so long as if either such Borrower (providedSubsidiary was a Guarantor prior to such merger, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borroweris a Guarantor; (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), ; provided that any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidateliquidation, wind-up or dissolve itself dissolution of Transaction Network Services (or suffer Bermuda) Ltd. shall be permitted hereunder so long as any liquidation or dissolution) into assets held by such Borrower or any other Wholly-Owned Subsidiary entity at the time of such Borrowerliquidation, wind-up or dissolution are disposed of in accordance with Section 3.7 hereof; or (ivd) acquire by purchase or otherwise all or any substantial part of the business or assets of of, or a business line, unit or division of, any other Person (as used herein, an “Acquisition” and such other than another Credit Party.
(bPerson, the “Target”) except pursuant to a Permitted Acquisition or any Investment permitted under Section 3.3(p). Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party its Subsidiaries may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions make an Acquisition (in each case, a “Permitted Acquisition”):) subject to the satisfaction of each of the following conditions or waiver thereof by the Requisite Lenders:
(i) Agent shall receive at least fourteen (14) days15 Business Days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business (a) of the type engaged in by Borrowers Borrower and its Subsidiaries as of the Closing Date, (b) substantially similar to the business engaged in by Borrower and its Subsidiaries as of the Closing Date or otherwise permitted (c) that transports on behalf of third parties data communications and which 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 Section 3.9this 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;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Indebtedness, Guaranteed Indebtedness, Contingent Obligations or other liabilities other than Purchase Money Indebtedness permitted pursuant to Section 3.1(e)(iii) shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers Borrower and Target after giving effect to such Permitted Acquisition, except (iA) industrial revenue bondsLoans made hereunder, pollution control bonds (B) ordinary course trade payables, accrued expenses and other taxIndebtedness of the Target to the extent permitted by Section 3.1 (other than Section 3.1(i)) or 3.4 and (C) customary earn-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely out obligations owing by Fixtures, Equipment and/or Real Estate and Holdings or any accessions thereto or proceeds thereof and related property, and not Subsidiary of Holdings incurred in anticipation of connection with such Acquisition provided that such obligations constitute Subordinated Debt and shall contain such other terms and conditions reasonably satisfactory to Agent;
(A) both immediately before or after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower is in compliance with the financial covenants set forth in Sections 4.2 and 4.3, (B) after giving effect to such Permitted Acquisition (“and any Advances funded or other amounts expended in connection therewith) the Borrower will have Required Availability of not less than $15,000,000, and (C) (1) if either before or after giving effect to the proposed Permitted Acquisition Debt”) on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio greater than 2.5 to 1.0, the aggregate consideration (excluding up to $100,000,000 per acquisition of consideration paid in the form of Holdings Common Stock and (ii) Loans made hereunder;
(v) the sum of including all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers Borrower and Target) shall not exceed (1I) in connection with any single Permitted Acquisition, $100,000,000 75,000,000 minus any Investments made pursuant to Section 3.3(p) in connection with the aggregate per year or consummation of such Acquisition; and (II) in connection with all Permitted Acquisitions since the Closing Date, $150,000,000 minus any Investments made pursuant to Section 3.3(p) in connection with the consummation of Acquisitions since the Closing Date, (2) more if both before and after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio greater than 2.0 to 1.0 but equal to or less than 2.5 to 1.0, the aggregate consideration (A) excluding up to $25,000,000 125,000,000 per acquisition of consideration paid in the aggregate per year form of Holdings Common Stock and 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 (I) in connection with any single Permitted Acquisition, $100,000,000 minus any Investments made pursuant to Section 3.3(p) in connection with the consummation of such Acquisition; and (BII) in connection with all Permitted Acquisitions since the Closing Date, $50,000,000 200,000,000 minus any Investments made pursuant to Section 3.3(p) in connection with the consummation of Acquisitions since the Closing Date or (3) if both before and after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio equal to or less than 2.0 to 1.0, the aggregate consideration (excluding up to $150,000,000 per acquisition of consideration paid in the aggregate during form of Holdings Common Stock and 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 (I) in connection with any single Permitted Acquisition, $150,000,000 minus any Investments made pursuant to Section 3.3(p) in connection with the term consummation of this Agreementsuch Acquisition, for International and (II) in connection with all Permitted Acquisitions and Canadian since the Closing Date, $300,000,000 minus any Investments made pursuant to Section 3.3(p) in connection with the consummation of Acquisitions collectively;since the Closing Date.
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, Agent will be granted Liens a first priority perfected Lien (to the extent required by the Collateral Documents and subject to Permitted Encumbrances) in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all the assets and Stock of the assets Target as and to the extent required by Section 2.7(c), 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;
(viii) concurrently with delivery of the Targetnotice referred to in clause (i) 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, 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 Holdings and its Subsidiaries would have been in compliance with the financial covenants set forth in Section 4 for the four quarter period reflected in the Compliance, Pricing, and Excess Cash Certificate most recently delivered to Agent pursuant to Section 4.4(l) 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) solely in respect of any Permitted Acquisition where the total aggregate consideration exceeds $10,000,000, projections covering the 1 year period commencing on the date of such Permitted Acquisition setting forth in form and substance reasonably satisfactory to Agent the anticipated results of operations of the Stock Target and Holdings and its Subsidiaries (the “Acquisition Projections”) based upon historical financial data for the Target of a recent date reasonably satisfactory to Agent; which Acquisition Projections shall evidence that on a pro forma basis, after giving effect to any add-backs approved by Agent, Holdings and its Subsidiaries shall continue to be in compliance with the financial covenants set forth in Section 4 for the 1 year period thereafter;
(C) a certificate of the chief financial officer (or another officer acceptable to Agent) of Borrower to the effect that: (v) Holdings and its Subsidiaries when taken as a whole will be Solvent upon the consummation of the Permitted Acquisition; (w) the Acquisition Pro Forma fairly presents in all material respects 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 a reasonable estimate 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 Target and (z) Holdings and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a stock purchase 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;
(ix) solely in respect of any Permitted Acquisition where the total aggregate consideration exceeds $50,000,000 ((A) excluding (I) if either before or merger resulting after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio greater than 2.0 to 1.0, up to $100,000,000 of consideration paid in the form of Holdings Common Stock, (II) if both before and after giving effect to the proposed Permitted Acquisition on a new SubsidiaryPro Forma Basis, Borrower has a pro forma Leverage Ratio greater than 2.0 to 1.0 but equal to or less than 2.5 to 1.0, up to $125,000,000 of consideration paid in the form of Holdings Common Stock (III) if both before and after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower has a pro forma Leverage Ratio equal to or less than 2.0 to 1.0, up to $150,000,000 of consideration paid in the form of Holdings Common Stock and (B) 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), EBITDA (calculated with respect to the Target) of the Target for the four quarter period immediately preceding such Permitted Acquisition shall have been pledged at least $1;
(x) at least five (5) Business Days 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 Target related agreements and instruments, and all opinions, certificates, lien search results, copies of all environmental reports and memoranda related thereto to the extent prepared in connection with such Permitted Acquisition, and other documents reasonably requested by Agent, including those specified in Section 2.7; and
(in a Stock purchase xi) at the time of such Permitted Acquisition and after giving effect thereto, no Default or merger resulting in a new Subsidiary) shall have become a Guarantor Event of Default has occurred and a Credit Party hereunder;is continuing.
Appears in 1 contract
Samples: Credit Agreement (TNS Inc)
Restriction on Fundamental Changes. (a) The Credit Parties shall Borrower will not and shall ---------------------------------- will not cause or permit their its Subsidiaries to directly or indirectlyindirectly to: (i) unless and only to the extent required by law, amend, modify or waive any term or provision of its organizational documents, including its articles of incorporationorganization, partnership agreement, operating agreement, management agreements, articles of incorporation or certificates of designations pertaining to preferred stock, stock or by-lawslaws without the consent of CoBank (which consent shall not be unreasonably withheld), partnership agreement other than an amendment, modification or operating agreement waiver that is solely ministerial or administrative in a manner which would aversely affect Agent and Lenders nature or the reincorporation of Borrower in any material respect unless required by lawthe State of Delaware; provided, thathowever, the Related Transactions, and Borrower shall promptly give CoBank notice of any such amendmentsamendment, waiver modification or modifications required in connection therewith shall be specifically permittedwaiver; (ii) enter into any transaction of merger or consolidation exceptor acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, upon not less than five except (5a) Business Days’ prior written notice to Agent (or, in the case any Subsidiary of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into Borrower or any wholly owned Subsidiary of Borrower provided that Borrower or such Borrower (provided, that such wholly owned Subsidiary of Borrower is the surviving entityentity and (b) Borrower or be merged its Subsidiaries may consolidate or consolidated merge with or into any other Wholly-Owned Person or acquire by purchase or otherwise all or any substantial part of the business or assets of any other Person, provided that no Default or Event of Default then exists or would result from such transaction, Borrower or such Subsidiary is the surviving or continuing entity and the consideration for each such transaction provided by Borrower (whether in the form of stock, cash or other consideration) does not exceed $50,000,000 and such Borrowerconsideration for all such transactions under this subclause (b) does not in the aggregate exceed $100,000,000; or (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another . Credit Party.
(b) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of any Person (a “Target”) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;/SureWest Communications
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Credit Parties U.S. Borrower shall not not, and shall not cause or permit their any of its Material Subsidiaries to directly or indirectly: to:
(i) amendmerge or consolidate with, modify or waive any term or provision of its organizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a manner which would aversely affect Agent and Lenders in any material respect unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; or
(ii) enter into any transaction of merger or consolidation exceptconvey, upon not less than five (5) Business Days’ prior written notice to Agent (ortransfer, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, that such Borrower is the surviving entity) or be merged or consolidated with or into any other Wholly-Owned Subsidiary of such Borrower; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (iv) acquire by purchase lease or otherwise all or any substantial part dispose of the business or assets of any Person other than another Credit Party.
(b) Notwithstanding the foregoing, any Borrower whether in one transaction or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire series of transactions) all or substantially all of the assets of any Person property (a “Target”) whether now owned or operating division of a Target or one hundred percent (100%hereafter acquired) of the outstanding stock of any Target or cause any Target to be merged with it or liquidatedU.S. Borrower and its Subsidiaries, wound-up or dissolved into it subject to compliance with the following conditions (in each casetaken as a whole, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice of such proposed Permitted Acquisitionto, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;or
(iii) such Permitted Acquisition shall be consensual convey, transfer, lease or otherwise dispose of (whether in one transaction or a series of transactions, and whether by or pursuant to merger, consolidation or any other arrangement), any property (whether now owned or hereafter acquired) essential to the conduct of the business of the U.S. Borrower and its Subsidiaries, taken as a whole, to, any Person; provided, however, that so long as no Default shall have been approved occurred and then be continuing or would result therefrom, any Person may merge or consolidate with (A) any Borrower, so long as such Borrower is the surviving entity and (B) any Material Subsidiary; provided, further, that in the case of clauses (A) and (B), such merger or consolidation is not otherwise prohibited by this Agreement. Subject to the foregoing, and except to the extent otherwise prohibited by this Agreement, the U.S. Borrower may, directly or indirectly, sell all or AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION a portion of the capital stock or other equity interests of any Subsidiary (including by way of a merger or consolidation) for fair market value, as determined in good faith by the TargetU.S. Borrower’s board of directors;
(iv) no additional Indebtedness ; provided, however, that if such Subsidiary is also a Euro Borrower or Contingent Obligations shall Swing Loan Borrower, such Subsidiary ceases to be incurreda Euro Borrower or Swing Loan Borrower, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect as applicable, immediately prior to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds sale and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation all Obligations of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable Subsidiary in connection with all Permitted Acquisitions (includingits capacity as a Euro Borrower or Swing Loan Borrower, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed as applicable are paid in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and (B) $50,000,000 in the aggregate during the term of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) (A) full prior to or within ten (10 ) Business Days after the closing date of any U.S. Acquisition, Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor and a Credit Party hereunder;such sale.
Appears in 1 contract
Samples: Credit Agreement (FMC Corp)
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (ia) amend, modify or waive any term or provision of its organizational documents, including its articles of incorporation, articles of association, certificates of designations pertaining to preferred stock, by-laws, partnership agreement, operating agreement or operating agreement any shareholders' agreements (except in a manner which that would aversely affect Agent not conflict with any provision of any Loan Document and Lenders would not be adverse in any material respect to Lenders) unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (iib) enter into any transaction of merger merger, amalgamation or consolidation except, (i) upon not less than five (5) Business Days’ Days prior written notice to Agent Agent, (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), w) any Wholly-Owned owned US Subsidiary (other than Canadian Borrower) of a US Borrower may be merged with or into such US Borrower (provided, PROVIDED that such US Borrower is the surviving entity), (x) any Wholly-owned Non-US Subsidiary (other than an Unrestricted Subsidiary) of European Borrower may be merged with or into European Borrower (PROVIDED that European Borrower is the surviving entity), (y) any Wholly-owned Subsidiary of a Borrower may be merged or consolidated amalgamated with or into any other another Wholly-Owned owned Subsidiary of such BorrowerBorrower (PROVIDED that (A) both such Subsidiaries were formed or incorporated under the laws of the same country, (B) the Stock of the Subsidiary that is the surviving entity is subject to a Pledge Agreement, (C) the Subsidiary that is the surviving entity has executed a Guaranty and (D) neither such Subsidiary is an Unrestricted Subsidiary), (ii) with respect to the European Mergers and (iii) Borrowers and their Subsidiaries may enter into an agreement to effect any merger, amalgamation or consolidation, the closing of which is conditioned upon the payment in full in cash of all of the Obligations (other than contingent indemnification obligations to the extent Annex A Page 51 no unsatisfied claim giving rise thereto has been asserted) and the termination of the Revolving Loan Commitments; (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except), upon not less than five (5) Business Days’ prior written notice to Agent (or, except in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) Subsidiaries of a Borrower may liquidateBorrower, (i) to the extent such Subsidiary is dormant, (ii) to the extent such dissolution, wind-up or dissolve itself liquidation will not have a Material Adverse Effect, or (or suffer any liquidation or dissolutioniii) into such Borrower or any other Wholly-Owned Subsidiary of such Borrowerthe Agent shall have consented thereto; or (ivd) acquire by purchase or otherwise all or any substantial part of the business or assets of any Person other than another Credit Party.
(b) Person. Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party Party, may acquire all or substantially all of the assets or Stock of any Person (a “Target”the "TARGET") or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):"PERMITTED ACQUISITION") subject to the satisfaction of each of the following conditions:
(i) Agent shall receive at least fourteen (14) 25 days’ ' prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets (A) except as provided in clause (v) below, located in the United States or Canada and (B) comprising a business business, or those assets of a business business, of the type engaged in by Borrowers Credit Parties as of the Closing Date or otherwise permitted of a type reasonably related thereto, and which 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 Section 3.9this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to the Credit Parties prior to such Permitted Acquisition;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s 's board of directors;
(iv) no additional Indebtedness, Guaranteed Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers the Credit Parties and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (iiA) Loans made hereunder, (B) ordinary course trade payables and accrued expenses, (C) other Indebtedness permitted under SECTION 3.1 and (D) other Contingent Obligations permitted under SECTION 3.4;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, including all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers the Credit Parties and Target) (the "TOTAL CONSIDERATION") shall not exceed the US Dollar Equivalent of US$20,000,000 (1exclusive of the amount of any "earnouts" incurred by any Credit Party in connection with Permitted Acquisitions ("PERMITTED ACQUISITION EARNOUTS")) $100,000,000 in during the aggregate per year or (2) more than term hereof; provided further, and without limiting the foregoing, (A) $25,000,000 with respect to Permitted Acquisitions involving assets located outside of the United States or Canada, (x) the secured lending and bankruptcy laws of the jurisdiction in which such assets are located must be acceptable to Agent, except to the extent to which the aggregate per year Total Consideration of all Permitted Acquisitions that involve assets Annex A Page 52 located in jurisdictions which have lending or bankruptcy laws that are not acceptable to Agent does not exceed the Dollar Equivalent of US$5,000,000 during the term hereof (a Credit Party that has assets in any such jurisdiction that is not acceptable to Agent is hereinafter referred to as an "UNFAVORABLE JURISDICTION CREDIT PARTY") and (y) the Total Consideration of all such Permitted Acquisitions shall not exceed the US Dollar Equivalent of US$10,000,000 during the term hereof and (B) $50,000,000 in the maximum potential aggregate during amount of obligations of the term Credit Parties with respect to all Permitted Acquisition Earnouts pertaining to a Permitted Acquisition shall not exceed 50% of this Agreement, for International Acquisitions and Canadian Acquisitions collectivelythe Total Consideration of such Permitted Acquisition;
(vi) the terms of any Permitted Acquisition Earnout shall (A) include a provision in form and substance satisfactory to Agent (which by its terms shall not be permitted to be amended, waived or modified without the prior written consent of Agent (or any successor of Agent)) pursuant to which (x) the Permitted Acquisition Earnout is only permitted to be paid to the extent such payment is expressly permitted by this Agreement (as this Agreement may be amended, modified, replaced or refinanced from time to time), and (y) to the extent any Permitted Acquisition Earnout payment is made in violation of this Agreement (as this Agreement may be amended, modified, replaced or refinanced) the holder of such Permitted Acquisition Earnout agrees to promptly forward such payment to Agent (or any successor to Agent) and (B) provide that the Earnout is only payable to the extent that the performance of the Credit Parties acquired, established or created in connection with the related Permitted Acquisition exceeds the performance contemplated by the Acquisition Pro Forma and Acquisition Projections each pertaining to such Permitted Acquisition;
(vii) 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 trailing twelve-month period 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);
(viiix) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, Agent will be granted Liens a first priority perfected Lien (subject to Permitted Encumbrances) in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all the assets and Stock of the Target in the manner provided by SECTION 2.7, 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; provided that to the extent that such Permitted Acquisition is funded solely by third party Indebtedness for borrowed money (and without any Loan proceeds whatsoever) in an aggregate amount not to exceed the Dollar Equivalent of US$ 5,000,000 and the Person that is acquired in such Permitted Acquisition is an Unrestricted Subsidiary or substantially all of the assets acquired in such Permitted Acquisition are acquired by an Unrestricted Subsidiary, such Unrestricted Subsidiary shall not be required to xxxxx x Xxxx on its assets in favor of Agent to the extent, and so long as, such grant would violate the terms of such third party Indebtedness for borrowed money;
(x) concurrently with delivery of the Targetnotice referred to in CLAUSE (i) above, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) Borrowers shall have been pledged delivered to Agent, in form and Target substance reasonably satisfactory to Agent in order to demonstrate the following:
(A) a pro forma consolidated balance sheet, income statement and cash flow statement of Holdings, 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 Holdings, 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 US Borrowing Availability for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded US$9,000,000 on a Stock purchase 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 shall reflect that such US Borrowing Availability of US$9,000,000 shall continue for at least 90 days after the consummation of such Permitted Acquisition, (y) average daily European Borrowing Availability for the 90-day period preceding the consummation of such Permitted Acquisition would have exceeded 3,500,000 Euros 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 shall reflect that such European Borrowing Availability of 3,500,000 Euros 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 merger resulting would result after giving effect to such Permitted Acquisition and Borrowers would have been in compliance with the financial covenants set forth in SECTION 4 for the four quarter period reflected in the Compliance Certificate most recently delivered to Agent pursuant to SECTION 4.8(n) 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 twelve month 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 new Subsidiaryrecent 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 Borrowers will be Solvent upon the consummation of the Permitted Acquisition;
(xi) on or prior to the date of such Permitted Acquisition, Agent shall have become a Guarantor received, in form and a substance reasonably satisfactory to Agent in order to confirm compliance with this Agreement, copies of the acquisition agreement and related agreements Annex A Page 54 and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the SECTIONS 2.6 and 2.7; and
(xii) at the time of such Permitted Acquisition and after giving effect thereto, (A) no Default or Event of Default has occurred and is continuing and (B) each representation or warranty by any Credit Party hereunder;contained herein (including without limitation SECTION 5.13; and solely for the purposes of this clause (xii), the representations and warranties in SECTION 5.13 solely with respect to any property acquired pursuant to such Permitted Acquisition shall be deemed made as of the date immediately after the consummation of such Permitted Acquisition rather than as of the Closing Date) or in any other Loan Document is true and correct in all material respects as of such date, except to the extent that such representation or warranty expressly relates to an earlier date.
Appears in 1 contract
Samples: Credit Agreement (Aas Capital Corp)
Restriction on Fundamental Changes. (a) The Credit Parties shall not and shall not cause or permit their Subsidiaries to directly or indirectly: (ia) except as described on SCHEDULE 5.6, amend, modify or waive any term or provision of its organizational documentsdocuments in a manner adverse to the Lenders, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement in a any manner which would aversely affect adverse to the Agent and Lenders or Lenders, or cause any equity interest in any material respect limited liability company to be certificated, unless required by law; provided, that, the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permitted; (iib) enter into any transaction of merger 41 or consolidation except, upon not less than five (5) Business Days’ Days prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Whollywholly-Owned owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, PROVIDED that such Borrower is the surviving entity) or be merged or consolidated any other wholly-owned Subsidiary of Borrower (provided that, in the case of any such merger of any Domestic Subsidiary with or into any other Wholly-Owned a Foreign Subsidiary, the Domestic Subsidiary of such Borroweris the surviving entity); (iiic) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower or any other Wholly-Owned Subsidiary of such Borrower; or (ivd) acquire by purchase or otherwise all or any substantial part of the Stock, business or assets of any Person other than another Credit Party.
(b) Person. Notwithstanding the foregoing, any Borrower (or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party Holdings, so long as contemporaneously therewith, all assets so acquired are transferred to Borrower contemporaneous with the closing of such acquisition), may acquire all or substantially all of the assets or Stock of any Person (a “Target”the "TARGET") or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):"PERMITTED ACQUISITION") subject to the satisfaction of each of the following conditions:
(i) Agent shall receive at least fourteen (14) days’ 30 Business Days' prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets located in the United States and comprising a business business, or those assets of a business business, of the type engaged in by Borrowers Borrower as of the Closing Date Date, and which business would not subject Agent or otherwise permitted any Lender to regulatory or third party approvals in connection with the exercise of its rights and remedies under Section 3.9this 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;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s 's board of directors;
(iv) no additional Indebtedness or Indebtedness, Guaranteed Indebtedness, Contingent Obligations or other liabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers Borrower and Target after giving effect to such Permitted Acquisition, except (iA) industrial revenue bondsordinary course trade payables and accrued expenses and (B) Indebtedness otherwise permitted under SECTION 5.1(f) or 5.1(g) of the Target not to exceed $8,000,000 in the aggregate for any Permitted Acquisition so long as on a pro forma basis, pollution control bonds Holdings and other tax-exempt financingits Subsidiaries would have had a Leverage Ratio and Senior Leverage Ratio of less than or equal to the Leverage Ratio and Senior Leverage Ratio, Capital Leasesrespectively, of Holdings and installment purchase Indebtedness, its Subsidiaries for the four quarter period ending on the last day of the month immediately preceding the month in which such proposed Permitted Acquisition is to be consummated (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day such period); in each case secured solely by Fixtures, Equipment and/or Real Estate to the extent no Default or Event of Default has occurred and any accessions thereto is continuing or proceeds thereof and related property, and not incurred in anticipation of would result after giving effect to such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunderAcquisition;
(v) the sum of all amounts payable in connection with all any Permitted Acquisitions Acquisition (including, without duplicationincluding the purchase price, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition DebtIndebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers Borrower and Target) shall not exceed (1) $100,000,000 8,000,000 and the sum of such amounts payable in connection with all Permitted Acquisitions shall not exceed $32,000,000, and the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year portion thereof allocable to goodwill and (B) $50,000,000 in the aggregate intangible assets for all such Permitted Acquisitions during the term hereof shall not exceed $16,000,000; 42
(vi) unless otherwise consented to in writing by Agent, the Target shall not have negative EBITDA for the trailing twelve-month period greater than $1,000,000 preceding the date of this Agreementthe Permitted Acquisition, as determined based upon the Target's financial statements for International Acquisitions its most recently completed fiscal year and Canadian Acquisitions collectivelyits most recent interim financial period completed within sixty (60) days prior to the date of consummation of such Permitted Acquisition;
(vivii) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(viiviii) (A) at or prior to or within ten (10 ) Business Days after the closing of any U.S. Permitted Acquisition, Agent will be granted Liens a first priority perfected Lien (subject to Permitted Encumbrances) in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets and Stock of the Target, all and Holdings and Borrower and the Target shall comply with SECTION 4.7 and shall otherwise have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the Stock of Target notice referred to in CLAUSE (in a stock purchase or merger resulting in a new SubsidiaryI) above, Borrower shall have been pledged 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 Leverage Ratio and Senior Leverage Ratio with a numerator (or equivalent thereof) one quarter (0.25) less than otherwise permitted (for example, if the permitted Leverage Ratio is less than or equal 3.00 to 1.00, Holdings and its Subsidiaries must have a Leverage Ratio of less than or equal to 2.75 to 1.00) for the four quarter period ending on the last day of the month immediately preceding the month in which such proposed Permitted Acquisition is to be consummated (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 $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 (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 SECTION 6 for the four quarter period reflected in the Compliance and Excess Cash Flow Certificate most recently delivered to Agent pursuant to SECTION 6.2(o) 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 43 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 (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 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 SECTION 6 for the 3-year period thereafter; and (z) Holdings and its Subsidiaries have completed their due diligence investigation with respect to the Target and such Permitted Acquisition, which investigation was conducted in a Stock purchase 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 merger resulting in a new Subsidiary) prior to the date of such Permitted Acquisition, Agent shall have become a Guarantor received, in form and a Credit Party hereunder;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 4.6; 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 (RadNet, Inc.)
Restriction on Fundamental Changes. (a) The Credit Loan Parties shall will not, and will not and shall not cause or permit their respective Subsidiaries to (other than Excluded Subsidiaries) to, directly or indirectly: (iA) unless and only to the extent required by law or as would not be reasonably expected to be materially adverse to the interests of Lenders, amend, modify or waive any term or provision of its organizational documentstheir respective articles of organization, including its operating agreements, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, articles of formation or partnership agreement or operating agreement (provided that 10 days prior notice will be delivered to Administrative Agent of any modification that results in a manner which would aversely affect Agent Loan Party, any Subsidiary of a Loan Party (other than an Excluded Subsidiary) or any entity whose equity interest is pledged by a Loan Party pursuant to the Pledge and Lenders in any material respect unless required by law; provided, that, Security Agreement opting into Article 8 of the Related Transactions, and any such amendments, waiver or modifications required in connection therewith shall be specifically permittedUCC); (iiB) enter into any transaction of merger or consolidation exceptconsolidation, upon not less than five except that (5i) Business Days’ prior written notice to Agent (or, in the case any Subsidiary of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary (other than Canadian Borrower) of a Borrower may be merged with or into such Borrower (provided, provided that such Borrower is the surviving entity), (ii) any Loan Party other than Borrower may merge or consolidate with any other Loan Party other than Borrower, (iii) any Subsidiary that is not a Loan Party may merge, dissolve, liquidate or consolidate with or into any Loan Party, provided that such Loan Party shall be merged the continuing or consolidated surviving corporation, (iv) any Subsidiary which is not a Loan Party may merge, dissolve, liquidate, consolidate with or into any other Wholly-Owned Subsidiary of such Borrowerwhich is not a Loan Party, (v) any Excluded Subsidiary may merge, dissolve, liquidate or consolidate with or into any other Xxxxx, (vi) any Permitted Acquisition and Investment or any other permitted Investment or any permitted Asset Disposition may be structured as merger, consolidation or amalgamation; (iiiC) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except, upon not less than five (5) Business Days’ prior written notice to Agent (or, in the case of Canadian Borrower and its Subsidiaries, Canadian Agent), any Wholly-Owned Subsidiary except in connection with another transaction permitted under clause (other than Canadian BorrowerB) of a Borrower may liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) into such Borrower above or any other Wholly-Owned Subsidiary of such BorrowerAsset Disposition permitted under Subsection 3.7; or (ivD) acquire by purchase or otherwise all or any substantial part of the business business, assets or assets equity interests of any Person other than another Credit Party.
(b) Notwithstanding the foregoing, any Borrower or a Domestic Wholly-Owned Subsidiary thereof that is a Credit Party may acquire all or substantially all of the assets of in any Person (whether by stock purchase or otherwise) other than pursuant to a “Target”Permitted Acquisition and Investment or any other Investment permitted hereunder; provided that 10 days after (or such earlier date, which need not be more than 10 days prior to, as is required to maintain the perfection or priority of Administrative Agent’s security interests) or operating division of a Target or one hundred percent (100%) of the outstanding stock of any Target or cause any Target to be merged with it or liquidated, wound-up or dissolved into it subject to compliance with the following conditions (in each case, a “Permitted Acquisition”):
(i) Agent shall receive at least fourteen (14) days’ prior written notice effective date of such proposed Permitted Acquisitionmerger, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(ii) such Permitted Acquisition shall only involve assets comprising a business consolidation, dissolution, liquidation, or those assets of a business of the type engaged in by Borrowers as of the Closing Date or otherwise permitted under Section 3.9;
(iii) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(iv) no additional Indebtedness or Contingent Obligations shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrowers and Target after giving effect to such Permitted Acquisition, except (i) industrial revenue bonds, pollution control bonds and other tax-exempt financing, Capital Leases, and installment purchase Indebtedness, in each case secured solely by Fixtures, Equipment and/or Real Estate and any accessions thereto or proceeds thereof and related property, and not incurred in anticipation of such Permitted Acquisition (“Permitted Acquisition Debt”) and (ii) Loans made hereunder;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including, without duplication, all earn outs, working capital adjustments, transaction costs and all Permitted Acquisition Debt, and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrowers and Target) shall not exceed (1) $100,000,000 amalgamation in the aggregate per year or (2) more than (A) $25,000,000 in the aggregate per year and case of clause (B) $50,000,000 or clause (C), such acquisition in the aggregate during case of clause (D), or such amendment, modification or waiver in the term case of this Agreement, for International Acquisitions and Canadian Acquisitions collectively;
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) clause (A) prior to or within ten (10 ) Business Days after the closing of any U.S. Acquisition), Agent will be granted Liens in accordance with Section 2.11 in substantially all of the assets acquired pursuant thereto or in all or substantially all of the assets of the Target, all of the Stock of Target (in a stock purchase or merger resulting in a new Subsidiary) Borrower shall have been pledged to Agent, and Target (in a Stock purchase or merger resulting in a new Subsidiary) shall have become a Guarantor provide notice and a Credit Party hereunder;copy thereof or the documentation relating thereto to Administrative Agent.
Appears in 1 contract
