Restriction on Fundamental Changes. (a) The Borrower shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidation, or 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 transactions, all or any substantial part of 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 Subsidiary 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) 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 interests of the Agent or the Lenders.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Borrower Credit Parties 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 Subsidiaries toorganizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement unless required by law, to the extent that any such amendment, modification or waiver has had, or could reasonably be expected to have, an adverse effect on the Lenders;
(ii) enter into any transaction of merger or consolidationconsolidation except, upon not less than five (5) Business Days' prior written notice to Agent, (x) any wholly-owned Domestic Subsidiary of Borrower may be merged with or into any other wholly-owned Domestic Subsidiary of Borrower or, so long as the Borrower is the survivor of such merger, into Borrower, and (y) any Subsidiary of Borrower, other than a Domestic Subsidiary, may be merged with another Subsidiary of Borrower, other than a Domestic Subsidiary, or with a Domestic Subsidiary of Borrower so long as such 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), discontinue its business or convey, lease, sell, transfer ; or
(iv) acquire by purchase or otherwise dispose of, in one transaction the Stock or series of transactions, all or any substantial part of its the business or propertyassets of any other Person except as set forth in paragraph (b) below.
(b) Notwithstanding the foregoing, whether now Borrower or hereafter acquired, except (i) as otherwise permitted under Section 7.5, (ii) any wholly-owned a Subsidiary of the Borrower may merge into or convey, sell, lease or transfer acquire all or substantially all of its the assets to, or Stock of any Person (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, "Target") (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, (Aa "Permitted Acquisition") any such wholly-owned Subsidiary subject to the satisfaction of each of the Borrower which is the surviving corporation of any such merger or to which any business or property is so transferred following conditions:
(i) Agent 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 receive at least ten (10) 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, or those assets of a business, of the type engaged in by Borrower as of the date hereof, 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 this Agreement or any other Loan Documents other than approvals applicable to the exercise of such salerights 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, merger Guaranteed Indebtedness, Contingent Obligations or other transferliabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (CA) 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 Subsidiary so merged Loans made hereunder and (DB) ordinary course trade payables, accrued expenses and unsecured Indebtedness of the Target to the extent no Default or Event of Default shall have has occurred or be and is continuing or would occur result after giving effect thereto or as a result thereof.to such Permitted Acquisition;
(bv) the sum of all amounts payable in connection with all Permitted Acquisitions (including all transaction costs and all Indebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower and Target) shall not exceed $15,000,000 and the portion thereof allocable to goodwill and intangible assets for all such Permitted Acquisitions during the term hereof 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);
(viii) at or prior to the closing of any Permitted Acquisition, (x) if such Permitted Acquisition is being made by Borrower or a Domestic Subsidiary of Borrower Agent will be granted a first priority perfected Lien in all assets acquired pursuant thereto (subject to Permitted Encumbrances) or, if applicable, in the assets (subject to Permitted Encumbrances) and if upon acquisition thereof the Target will become a Domestic Subsidiary, the Stock of the Target, 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 Target acquired in such Permitted Acquisition and the acquirer shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(ix) Concurrently with delivery of the notice referred to in clause (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 manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders;
(x) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of the acquisition agreement and related agreements and instruments, and all opinions, certificates, lien search results and other documents reasonably requested by Agent, including those specified in the last sentence of Section 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 Domestic Subsidiary that shall not permit any of its Subsidiaries tohave become, amend its certificate of incorporation or by-laws (or other relevant organizational and governing documents) in any manner adverse to with the interests prior written consent of the Requisite Lenders and pursuant to such amendments to this Agreement and the other Loan Documents as Agent or shall have requested, a "borrower" hereunder, and unless the LendersAgent shall have given its prior written consent thereto.
Appears in 1 contract
Sources: Credit Agreement (Telex Communications International LTD)
Restriction on Fundamental Changes. Holdings and Borrower shall not and shall not cause or permit Borrower’s Subsidiaries to directly or indirectly: (a) The Borrower shall notamend, and shall not permit modify or waive any term or provision of its Subsidiaries toorganizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement unless required by law except if such amendment, modification, 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 Lenders; (b) enter into any merger or consolidationtransaction of merger, or consolidation except (i) pursuant to a Permitted Acquisition, (ii) the Permitted Foreign Subsidiary Restructuring, or (iii) upon not less than five (5) Business Days prior written notice to Agent, any Subsidiary of Borrower may be merged with or into any wholly-owned Subsidiary of Borrower so long as if either such Subsidiary was a Guarantor prior to such merger, the surviving Subsidiary is a Guarantor; (c) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), discontinue its business ; or convey, lease, sell, transfer (d) acquire by purchase or otherwise dispose of, in one transaction or series of transactions, all or any substantial part of its the business or propertyassets of any other Person except pursuant to a Permitted Acquisition. Notwithstanding the foregoing, whether now Borrower or hereafter acquired, except (i) as otherwise permitted under Section 7.5, (ii) any wholly-owned Subsidiary of the Borrower its Subsidiaries may merge into or convey, sell, lease or transfer acquire all or substantially all of its the assets to, or Stock of any Person (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, “Target”) (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 “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 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 a business (a) of the type engaged in by 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 (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 this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Borrower prior to such Permitted Acquisition;
(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, 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 Borrower and Target after giving effect to such Permitted Acquisition, except (A) any such wholly-owned Subsidiary Loans made hereunder, and (B) ordinary course trade payables, accrued expenses and other Indebtedness 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 Target to the Guaranty and the Subsidiary Security Agreement and if required extent permitted by Section 2.213.1 or 3.4;
(v) both 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 (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 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 Subsidiary Pledge Agreement“Foreign Acquisition”)), (B) the Borrower in connection with Permitted Acquisitions in any Fiscal Year shall give the Agent at least ten (10) days prior written notice of any such sale, merger or other transfer, not exceed $20,000,000 and (C) in connection with all Permitted Acquisitions since the Agent and Lenders Closing Date shall not exceed $50,000,000, of which not more than $20,000,000 shall have been consideration for Foreign Acquisitions or (2) if both before and after giving effect to the proposed Permitted Acquisition on a Pro Forma Basis, Borrower 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 Permitted Acquisitions since the Closing Date shall not exceed $70,000,000, of 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 Indebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower and Target;
(vi) the business and assets acquired in such Permitted Acquisition shall be deemed free and clear of all Liens (other than Permitted Encumbrances);
(vii) at or prior to have released their security interest the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in any all assets so transferred acquired pursuant thereto or in any Subsidiary or the assets and Stock of the 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 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 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 Subsidiary so merged 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 (Dii) 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 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) 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 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 shall have has occurred or be continuing or would occur after giving effect thereto or as a result thereofand is continuing.
(b) 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 interests of the Agent or the Lenders.
Appears in 1 contract
Sources: Credit Agreement (TNS Inc)
Restriction on Fundamental Changes. (a) The Borrower shall notChange its name, and shall not permit any change the nature of its Subsidiaries tobusiness from that conducted by the Loan Parties on the date of this Agreement (and other ancillary businesses reasonably related thereto), enter into any merger or merger, consolidation, reorganization, or liquidaterecapitalization, wind-up or dissolve reclassify its partnership interests (whether limited or suffer any liquidation general) or dissolution)membership interests, discontinue its business as applicable, or convey, sell, assign, lease, selltransfer, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or propertyAssets, whether now owned or hereafter acquiredacquired except:
(a) Borrower or any of its Subsidiaries may sell Assets in accordance with the provisions of Section 6.7 hereof;
(b) [Intentionally omitted.]
(c) Borrower or any of its Subsidiaries may offer or sell its membership interests to its employees so long as the aggregate voting power of the membership interests purchased by such employees does not exceed 49% of the aggregate voting power of the membership interests of each of Borrower or any of its Subsidiaries, except as applicable;
(id) as otherwise permitted under Section 7.5upon 10 days prior written notice to Lender, Borrower or any its Subsidiaries may change its name;
(iie) any wholly-owned Any Subsidiary of the Borrower may merge into or conveyanother Subsidiary, 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 a Guarantor, as long as 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 Guarantor is the surviving corporation entity and Borrower and JMP Holdings, Inc. may merge, so long as (x) a Change of any such merger or to which any business or property is so transferred shall be a party to the Guaranty Control Event does not result therefrom and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (By) the survivor thereof assumes Borrower’s obligations under the Loan Documents and agrees to be bound hereby and thereby;
(f) Any Guarantor or JMP Securities may enter into a recapitalization with respect to its membership interests or Securities, so long as Borrower shall give remains the Agent at least ten (10) days prior written notice managing member of any such sale, merger or other transfer, (C) Subsidiary and holds a majority of the Agent and Lenders shall not be deemed to have released their security voting interest in any assets so transferred or in any Subsidiary or the assets of any Subsidiary 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.such Subsidiary; and
(bg) Borrower shall not Newco and shall not permit any of its Subsidiaries to, amend its certificate of incorporation or by-laws (or other relevant organizational may issue and governing documents) sell membership interests in any manner adverse to the interests of the Agent or the Lendersconnection with equity transactions.
Appears in 1 contract
Sources: Credit Agreement (JMP Group Inc.)
Restriction on Fundamental Changes. (a) The Borrower Credit Parties 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 Subsidiaries toorganizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement that is adverse to Lenders, unless required by law; (ii) enter into any transaction of merger or consolidationconsolidation except, upon not less than five (5) Business Days prior written notice to Agent, (A) any wholly-owned Subsidiary of Borrower may be merged with or into Borrower (provided that Borrower is the surviving entity) or with or into any other wholly-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 legal opinions as Agent shall have requested in connection therewith; (iii) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), discontinue its business except that any wholly-owned Subsidiary of Borrower may liquidate or convey, lease, sell, transfer dissolve; or (iv) acquire by purchase or otherwise dispose of, in one transaction or series of transactions, all or any substantial part of its the business or propertyassets of any other Person.
(b) Notwithstanding the foregoing, whether now Borrower or hereafter acquired, except (i) as otherwise permitted under Section 7.5, (ii) any a wholly-owned Domestic Subsidiary of the Borrower thereof may merge into or convey, sell, lease or transfer acquire all or substantially all of its the assets to, or Stock of any Person (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, “Target”) (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, (Aa “Permitted Acquisition”) any such wholly-owned Subsidiary subject to the satisfaction of each of the Borrower which is the surviving corporation of any such merger or to which any business or property is so transferred following conditions:
(i) Agent 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 receive at least ten (10) days 30 days’ prior written notice of any such saleproposed Permitted Acquisition, merger 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 used for or other transferby a Target engaged in 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 incurred in connection with such Permitted Acquisition, except (CA) Indebtedness, Guaranteed Indebtedness and Contingent Obligations permitted under 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 terms of any Subsidiary so merged this Agreement and (DB) unsecured Indebtedness of the Target to the extent no Default or Event of Default shall have has occurred or be and is continuing or would occur result after giving effect to such Permitted Acquisition;
(v) the sum of all amounts payable in connection with all Permitted Acquisitions (including all transaction costs and all Indebtedness, liabilities and Contingent Obligations incurred or assumed in connection therewith or otherwise reflected on a consolidated balance sheet of Borrower and Target) shall not exceed $30,000,000 for all 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;
(viii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target, and 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 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 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 thereofafter 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 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 leased by Target as Agent shall have required; and
(E) copies of all material regulatory and third 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.
(bc) Borrower Notwithstanding the foregoing, the Accounts and Inventory of the Target shall not and shall be included in Eligible Accounts or Eligible Inventory without the prior written consent of Agent 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 interests of the Agent or the Lendersbe unreasonably withheld.
Appears in 1 contract
Sources: Credit Agreement (Southern Construction Products Inc)
Restriction on Fundamental Changes. (a) The Neither the Borrower nor EOPT shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidationconsolidation without obtaining the prior written consent thereto in writing of the Majority Banks, which consent shall not be unreasonably withheld, conditioned or delayed, unless (i) the Borrower or EOPT is the surviving entity, (ii) the entity which is merged into Borrower or 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 (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 substantial part substantially all of its business or property, whether now or hereafter acquired, except (i) as otherwise permitted under . Nothing in this Section 7.5, (ii) any wholly-owned Subsidiary shall be deemed to prohibit the sale or leasing of portions of the Borrower may merge into or convey, sell, lease or transfer all or substantially all Real Property Assets in the ordinary course of its assets tobusiness. Notwithstanding anything in this Agreement to the contrary, the Borrower or any other Domestic Subsidiary of parties hereto hereby agree that the Borrower, PROVIDED, that in any such merger involving the Borrower, the Borrower Majority Banks 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 approved the terms of the Cornerstone Merger set forth in any assets so transferred or in any Subsidiary or the assets of any Subsidiary 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 thereofConfidential Information Memorandum.
(b) The Borrower shall not and shall not permit any of its Subsidiaries to, amend its certificate agreement of incorporation or by-laws (limited partnership or other relevant organizational and governing documents) documents in any manner adverse to that would have a Material Adverse Effect without the interests Majority Banks' consent, which shall not be unreasonably withheld. Without limitation of the Agent or foregoing, no Person shall be admitted as a general partner of the LendersBorrower other than EOPT.
Appears in 1 contract
Sources: Revolving Credit Agreement (Eop Operating LTD Partnership)
Restriction on Fundamental Changes. (a) The Borrower shall notChange its name, and shall not permit any change the nature of its Subsidiaries tobusiness from that conducted by the Loan Parties on the date of this Agreement (and other ancillary businesses reasonably related thereto), enter into any merger or merger, consolidation, reorganization, or liquidaterecapitalization, wind-up or dissolve reclassify its partnership interests (whether limited or suffer any liquidation general) or dissolution)membership interests, discontinue its business as applicable, or convey, sell, assign, lease, selltransfer, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or propertyAssets, whether now owned or hereafter acquiredacquired except:
(a) Borrower or any of its Subsidiaries may sell Assets in accordance with the provisions of Section 6.7 hereof;
(b) [Intentionally omitted.]
(c) Borrower or any of its Subsidiaries may offer or sell its membership interests to its employees so long as the aggregate voting power of the membership interests purchased by such employees does not exceed 49% of the aggregate voting power of the membership interests of each of Borrower or any of its Subsidiaries, except as applicable;
(id) as otherwise permitted under Section 7.5upon 10 days prior written notice to Agent, Borrower or any its Subsidiaries may change its name;
(iie) any wholly-owned Any Subsidiary of the Borrower may merge into or conveyanother Subsidiary, 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 a Guarantor, as long as 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 Guarantor is the surviving corporation entity and Borrower and JMP Holdings, Inc. may merge, so long as (x) a Change of any such merger or to which any business or property is so transferred shall be a party to the Guaranty Control Event does not result therefrom and the Subsidiary Security Agreement and if required by Section 2.21, a Subsidiary Pledge Agreement, (By) 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 shall give remains the Agent at least ten (10) days prior written notice managing member of any such sale, merger or other transfer, (C) Subsidiary and holds a majority of the Agent and Lenders shall not be deemed to have released their security voting interest in any assets so transferred or in any Subsidiary or the assets of any Subsidiary 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 thereofsuch Subsidiary.
(b) 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 interests of the Agent or the Lenders.
Appears in 1 contract
Sources: Credit Agreement (JMP Group Inc.)
Restriction on Fundamental Changes. (a) The Neither the Borrower nor EQR shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidation, unless (i) the Borrower or EQR is the surviving entity, (ii) 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, 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 or EQR is twenty-five percent (25%) 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 unreasonably withheld, conditioned or delayed. Neither the Borrower nor EQR shall 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 transactions, all or any substantial part substantially all of its business or property, whether now or hereafter acquired, except (i) as otherwise permitted under . Nothing in this Section 7.5, (ii) any wholly-owned Subsidiary 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 may merge into shall not amend its agreement of limited partnership 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 organizational documents in any such merger involving manner that would have a Material Adverse Effect without the BorrowerAdministrative 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 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 deliver to Administrative Agent copies of the Borrower in a Permitted Acquisition permitted hereunder may merge with the Borrower or any wholly-owned Subsidiary all amendments to its agreement 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 limited partnership or to which any business EQR's declaration of trust, by-laws, 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 other organizational documents no less than ten (10) days prior written notice after the effective date 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 Subsidiary 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 thereofamendment.
(b) 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 interests of the Agent or the Lenders.
Appears in 1 contract
Sources: Revolving Credit Agreement (Equity Residential Properties Trust)
Restriction on Fundamental Changes. (a) The Neither the Borrower nor General Partner shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidationconsolidation without obtaining the prior written consent thereto in writing of the Required Banks, unless the following criteria are met: (i) the Borrower or General Partner is the surviving entity; (ii) the entity which is merged into Borrower or General Partner 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 either (A) Investment Grade or (B) if not Investment Grade, not lower than Borrower's or General Partner's creditworthiness, as applicable, 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 or General Partner is more than twenty-five percent (25%) of 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 nor General Partner shall 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 transactions, all or any substantial part substantially all of its business or property, whether now or hereafter acquired, except (i) as otherwise permitted under . Nothing in this 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 prohibit the sale or leasing of portions of the Real Property Assets in any assets so transferred or in any Subsidiary or the assets ordinary course of any Subsidiary 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 thereofbusiness.
(b) The Borrower shall not and 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 the Borrower other than General Partner. General Partner shall not permit 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 of its Subsidiaries to, amend property or assets to any of its certificate constituent partners if such transfer would result in an Event of incorporation or by-laws (or other relevant organizational and governing documentsDefault under Section 6.1(b) in any manner adverse to the interests by reason of a breach of the Agent or the Lendersprovisions of Section 5.8.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The Neither the Borrower nor EQR shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidation, unless (i) the Borrower or EQR is the surviving entity, (ii) 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 such merger or consolidation, and (v) in the case of any merger where the then fair market value of the assets of the entity which is merged into the Borrower or EQR is twenty-five percent (25%) 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 unreasonably withheld, conditioned or delayed. Neither the Borrower nor EQR shall 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 transactions, all or any substantial part substantially all of its business or property, whether now or hereafter acquired, except (i) as otherwise permitted under . Nothing in this Section 7.5, (ii) any wholly-owned Subsidiary 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 may merge into shall not amend its agreement of limited partnership 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 organizational documents in any such merger involving manner that would have a Material Adverse Effect without the BorrowerAdministrative 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 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 deliver to Administrative Agent copies of the Borrower in a Permitted Acquisition permitted hereunder may merge with the Borrower or any wholly-owned Subsidiary all amendments to its agreement 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 limited partnership or to which any business EQR's declaration of trust, by-laws, 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 other organizational documents no less than ten (10) days prior written notice after the effective date 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 Subsidiary 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 thereofamendment.
(b) 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 interests of the Agent or the Lenders.
Appears in 1 contract
Sources: Revolving Credit Agreement (Equity Residential Properties Trust)
Restriction on Fundamental Changes. (aA) The Borrower shall not, and shall not permit any of its Subsidiaries to, enter Enter into any transaction of merger or consolidation, or ; (B) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution); (C) convey, discontinue its business or conveysell, lease, sellsublease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or propertyassets, or the capital stock of any of its Subsidiaries, whether now owned or hereafter acquired, except ; or (iD) as acquire by purchase or otherwise permitted under Section 7.5, (ii) all or any wholly-owned Subsidiary substantial part of the business or assets of, or stock or other beneficial ownership of, any Person. Notwithstanding the foregoing, Borrower may merge into or convey, sell, lease or transfer acquire all or substantially all of its the assets to, or equity securities of any Person (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, “Target”) (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 “Permitted Acquisition”) subject to the satisfaction of each of the following conditions:
(1) Agent shall receive at least 10 Business Days’ prior written notice of such proposed Permitted Acquisition, which notice shall include a reasonably detailed description of such proposed Permitted Acquisition;
(2) such Permitted Acquisition shall only involve assets located in the United States and comprising a business, or those assets of a business, of a similar type engaged in by Obligors as of the Closing Date, 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 this Agreement or any other Loan Documents other than approvals applicable to the exercise of such rights and remedies with respect to Obligors prior to such Permitted Acquisition;
(3) such Permitted Acquisition shall be consensual and shall have been approved by the Target’s board of directors;
(4) no additional Indebtedness, Contingent Obligations or other liabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Obligor and Target after giving effect to such Permitted Acquisition, except (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 AgreementLoans made hereunder, (B) ordinary course trade payables, accrued expenses and unsecured Indebtedness of the Borrower shall give Target to 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 Subsidiary so merged and (D) extent no Default or Event of Default shall have has occurred or be and is continuing or would occur result after giving effect to such Permitted Acquisition and (C) Indebtedness permitted under subsection 7.1(G);
(5) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(6) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and equity securities of the Target, and Holdings and Obligor and the Target shall have executed such documents and taken such actions as may be required by Agent in connection therewith;
(7) at the time of such Permitted Acquisition (before and after giving effect to such Permitted Acquisition and all Loans funded in connection therewith), Excess Availability shall exceed $12,500,000;
(8) Within five (5) Business Days following delivery of the notice referred to in clause (1) above with respect to any Permitted Acquisition other than a Permitted Small Acquisition (unless otherwise requested by Agent with respect to any Permitted Small Acquisition), 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 average daily Excess Availability for the 30-day period preceding the consummation of such Permitted Acquisition would have exceeded $12,500,000 on a pro forma basis (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period) and the Acquisition Projections (as hereinafter defined) shall reflect that such Excess Availability of $12,500,000 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 thereof.after giving effect to such Permitted Acquisition and Borrower would have been in compliance with the financial covenants set forth in the Financial Covenants Rider recomputed for the twelve month period ending on the last day of the most recent fiscal quarter for which Agent has received the monthly financial statements required to be delivered pursuant to paragraph A of the Reporting Rider (after giving effect to such Permitted Acquisition and all Loans funded in connection therewith as if made on the first day of such period);
(b) updated versions of the most recently delivered Projections covering the 1 year period commencing on the date of such Permitted Acquisition and otherwise prepared in accordance with the Projections (the “Acquisition Projections”) and based upon historical financial data of a recent date reasonably satisfactory to Agent, taking into account such Permitted Acquisition;
(c) a certificate of the chief financial officer of Borrower on behalf of Borrower to the effect that: (w) the Parties 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 the Financial Covenants Rider for the 1 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 manner similar to that which would have been conducted by a prudent purchaser of a comparable business and the results of which investigation were delivered to Agent and Lenders; and
(d) any documentation required to be delivered in accordance with Section 5.5;
(9) on or prior to the date of such Permitted Acquisition, Agent shall have received, in form and substance reasonably satisfactory to Agent, environmental assessments 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 any landlord waivers requested by Agent; and
(10) 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 Target shall not be included in Eligible Accounts and Eligible Inventory unless Agent shall not permit any of its Subsidiaries tohave received the reports, amend its certificate of incorporation or by-laws listings and agings set forth in paragraph (or other relevant organizational and governing documentsG) in any manner adverse to the interests of the Agent or the LendersReporting Rider with respect to Target.
Appears in 1 contract
Sources: Loan and Security Agreement (Beacon Roofing Supply Inc)
Restriction on Fundamental Changes. (a) The Borrower shall not, will not and shall will not permit any of its Restricted Subsidiaries directly or indirectly to: (i) unless and only to the extent required by law, amend, modify or waive any term or provision of its articles of organization, partnership Credit Agreement/US Unwired Inc. agreement, operating agreement, management agreements, articles of incorporation, certificates of designations pertaining to preferred stock or by-laws, provided that in connection with the IWO Acquisition, Borrower may amend its articles of incorporation and bylaws as described in the Draft S-4; and provided, further, that Borrower may amend its articles of incorporation and bylaws to implement certain anti-takeover provisions as described in the Draft S-4; (ii) enter into any transaction of merger or consolidation, except any Subsidiary of Borrower (other than the Unrestricted Subsidiaries or any of their Subsidiaries) may be merged with or into Borrower or any wholly-owned Subsidiary of Borrower (excluding 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, and except GA PCS Acquisition Merger Subsidiary may merge with GA PCS, with GA PCS as the surviving entity, to consummate the GA PCS Acquisition and IWO Acquisition Merger Subsidiary may 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), discontinue its business ; or convey, lease, sell, transfer (iv) acquire by purchase or otherwise dispose of, in one transaction or series of transactions, all or any substantial part of its the 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 Subsidiary so merged and (D) no Default other Person; provided, however, that Borrower or Event of Default shall have occurred or be continuing or would occur after giving effect thereto or as a result thereof.
(b) 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 LA Unwired may consummate the GA PCS Acquisition subject to the interests of conditions set forth in Subsection 7.4 and may consummate the Agent or IWO Acquisition subject to the Lendersconditions set forth in Subsection 7.5.
Appears in 1 contract
Sources: Credit Agreement (Us Unwired Inc)
Restriction on Fundamental Changes. (a) The Borrower shall notChange its name, and shall not permit any change the nature of its Subsidiaries tobusiness from that conducted by the Loan Parties on the date of this Agreement (and other ancillary businesses reasonably related thereto), enter into any merger or merger, consolidation, reorganization, or liquidaterecapitalization, wind-up or dissolve reclassify its partnership interests (whether limited or suffer any liquidation general) or dissolution)membership interests, discontinue its business as applicable, or convey, sell, assign, lease, selltransfer, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any substantial part of its business or propertyAssets, whether now owned or hereafter acquired, except acquired except:
(ia) 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 its Subsidiaries may sell Assets 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 accordance with the Borrower or any wholly-owned Subsidiary provisions 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 Subsidiary 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.6.7 hereof;
(b) Borrower shall not and shall not permit or JMP Realty Trust, Inc. may sell, exchange or otherwise offer or sell its equity interests in a public offering;
(c) Borrower or any of its Subsidiaries tomay offer or sell its membership interests to its employees so long as the aggregate voting power of the membership interests purchased by such employees does not exceed 49% of the aggregate voting power of the membership interests of each of Borrower or any of its Subsidiaries, amend as applicable;
(d) upon 10 days prior written notice to Lender, Borrower or any its certificate Subsidiaries may change its name;
(e) Any Subsidiary of incorporation 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 by-laws (JMPAM may enter into a recapitalization with respect to its membership or other relevant organizational equity interests, so long as Borrower remains the managing member of such Subsidiary and governing documents) in any manner adverse to the interests holds a majority of the Agent or the Lendersvoting interest in such Subsidiary.
Appears in 1 contract
Sources: Credit Agreement (JMP Group Inc.)
Restriction on Fundamental Changes. (ax) The Borrower shall notWind-up, and shall not permit any liquidate, dissolve, change its name, or change the nature of its Subsidiaries tobusiness, (y) enter into any merger or merger, consolidation, amalgamation, reorganization, or liquidaterecapitalization, wind-up or dissolve reclassify its partnership interests (whether limited or suffer any liquidation general) or dissolution)membership interests, discontinue its business as applicable, or (z) convey, lease, sell, transfer assign, lease or sublease, transfer, or otherwise dispose of, whether in one transaction or a series of related transactions, all or any substantial part substantially all of its business or propertyAssets, whether now owned or hereafter acquired, except acquired except:
(a) (i) as otherwise permitted under Section 7.5SC Adviser Holdings may merge into Borrower in a transaction in which Borrower is the continuing or surviving Person, (ii) any wholly-owned Subsidiary of the Borrower SC Adviser Parent may merge into SC Adviser Holdings in a transaction in which SC Adviser Holdings is the continuing or convey, sell, lease or surviving Person and (iii) SC Adviser Holdings and SC Adviser Parent may collectively transfer all or substantially all of its assets to, the their Assets to Borrower (and each of SC Adviser Holdings and SC Adviser Parent may then subsequently liquidate or any other Domestic Subsidiary dissolve itself);
(b) [reserved];
(c) Covenant Parties may make Investments of the Borrower, PROVIDED, that type described 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, clause (iiid) any Solvent Person acquired by the Borrower or a Subsidiary of the Borrower definition of “Permitted Investments”;
(d) Covenant Parties may sell Assets in a Permitted Acquisition permitted hereunder may merge accordance with the Borrower or any wholly-owned Subsidiary provisions 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, Section 6.7 hereof;
(Ae) 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 upon ten (10) days prior written notice to Agent, any Covenant Party may change its name or jurisdiction of any such sale, merger or other transfer, (C) organization to another jurisdiction in 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 Subsidiary 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.United States;
(bf) Borrower shall not any Covenant Party may make Investments in accordance with the provisions of Section 6.3 hereof;
(g) any Person may merge, consolidate or reorganize with and shall not permit into any Loan Party or any of its Subsidiaries toSubsidiaries; provided that (i) if such transaction involves a Loan Party, amend its certificate either (A) a Loan Party is the sole surviving entity of incorporation such merger, consolidation or by-laws (reorganization and on or other relevant organizational and governing documents) in any manner adverse prior to the interests consummation of such merger, consolidation or reorganization, such Loan Party expressly reaffirms its Obligations or (B) if the surviving entity is not a Loan Party immediately prior to such merger, consolidation or reorganization, such Person is organized in a State of the United States and concurrently assumes all of the obligations of a Loan Party under the Loan Documents and provides all documentation and other information about such Person required under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, that has been reasonably requested by the Agent or the Lenders, and (ii) the consummation of such merger, consolidation or reorganization does not result in a Change of Control Event; and
(h) any Subsidiary of any Loan Party may liquidate, wind-up or dissolve, in each case, to the extent not otherwise materially adverse to such Loan Party and its Subsidiaries taken as a whole; provided that all of the proceeds of such liquidation, winding up or dissolution allocable to the direct or indirect ownership in such Loan Party or Subsidiary are distributed to the direct or indirect holder of such Subsidiary’s Equity Interests (pro rata based on ownership at the time of such liquidation, wind-up or dissolution) or to a Loan Party.
Appears in 1 contract
Restriction on Fundamental Changes. Holdings and Borrower shall not and shall not cause or permit Borrower's Subsidiaries to directly or indirectly: (a) The Borrower shall notamend, and shall not permit modify or waive any term or provision of its Subsidiaries toorganizational documents, including its articles of incorporation, certificates of designations pertaining to preferred stock, by-laws, partnership agreement or operating agreement unless required by law except if such amendment, modification, 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 Lenders; (b) enter into any transaction of merger or consolidationconsolidation except pursuant to a Permitted Acquisition and except, upon not less than five (5) Business Days prior written notice to Agent, any Subsidiary of Borrower may be merged with or into any wholly-owned Subsidiary of Borrower so long as if either such Subsidiary was a Guarantor prior to such merger, the surviving Subsidiary is a Guarantor; (c) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), discontinue its business ; or convey, lease, sell, transfer (d) acquire by purchase or otherwise dispose of, in one transaction or series of transactions, all or any substantial part of its the business or propertyassets of any other Person except pursuant to a Permitted Acquisition. Notwithstanding the foregoing, 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 acquire all or substantially all of its the assets to, or Stock of any Person (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, "Target") (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, (Aa "Permitted Acquisition") any such wholly-owned Subsidiary subject to the satisfaction of each of the Borrower which is the surviving corporation of any such merger or to which any business or property is so transferred following conditions:
(i) Agent 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 receive at least ten (10) 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 a business (a) of the type engaged in by Borrower as of the Closing Date, (b) substantially similar to the business engaged in by Borrower as of the Closing Date or (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 this Agreement or any other Loan Documents other than approvals applicable to the exercise of such salerights 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, merger Guaranteed Indebtedness, Contingent Obligations or other transferliabilities shall be incurred, assumed or otherwise be reflected on a consolidated balance sheet of Borrower and Target after giving effect to such Permitted Acquisition, except (A) 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 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 (in each case, excluding up to $10,000,000 per acquisition of consideration paid in the 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);
(vi) the business and assets acquired in such Permitted Acquisition shall be free and clear of all Liens (other than Permitted Encumbrances);
(vii) at or prior to the closing of any Permitted Acquisition, Agent will be granted a first priority perfected Lien (subject to Permitted Encumbrances) in all assets acquired pursuant thereto or in the assets and Stock of the Target 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 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 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 Agent chief financial officer of Borrower to the effect that: (v) Holdings and Lenders shall not its Subsidiaries when taken as a whole will be deemed 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 have released their security interest in any assets so transferred or in any Subsidiary or the assets Permitted Acquisition; (y) the Acquisition Projections are a reasonable estimate of any Subsidiary so merged 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 (Dz) 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 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) 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 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 shall have has occurred or be continuing or would occur after giving effect thereto or as a result thereofand is continuing.
(b) 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 interests of the Agent or the Lenders.
Appears in 1 contract
Sources: Credit Agreement (TNS Inc)
Restriction on Fundamental Changes. (a) The Borrower Neither Guarantor shall not, and shall not permit any of its Subsidiaries to, enter into any merger or consolidationconsolidation without obtaining the prior written consent thereto in writing of the Required Banks, unless the following criteria are met: (i) such Guarantor is the surviving entity; (ii) the entity which is merged into such Guarantor 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 either (A) Investment Grade or (B) if not Investment Grade, not lower than Guarantors' 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 such Guarantor is more than twenty-five percent (25%) of such Guarantors' 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 Guarantor shall 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 transactions, all or any substantial part substantially all of its business or property, whether now or hereafter acquired, except (i. Nothing in this Section 5.9(a) 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 prohibit the sale or leasing of portions of the Real Property Assets in any assets so transferred or in any Subsidiary or the assets ordinary course of any Subsidiary 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 thereofbusiness.
(b) Borrower shall not enter into any merger or consolidation without obtaining the prior written consent thereto in writing of the Required Banks, unless the following criteria are met: (i) the surviving entity is predominantly in the 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 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 shall not permit 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 transactions, 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 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 of its Subsidiaries to, amend property or assets to any of its certificate constituent partners if such transfer would result in an Event of incorporation or by-laws (or other relevant organizational and governing documentsDefault under Section 6.1(b) in any manner adverse to the interests by reason of a breach of the Agent or the Lendersprovisions of Section 5.8.
Appears in 1 contract
Restriction on Fundamental Changes. (a) The None of the Borrower shall not, and shall not permit or any of its Subsidiaries to, shall enter into any merger or consolidation, or 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 transactions, all or substantially all of the Borrower's or any substantial part of its such Subsidiary's business or property, whether now or hereafter acquired; PROVIDED, except HOWEVER, that (i) the Borrower may merge with any of its Subsidiaries, so long as otherwise permitted under Section 7.5(x) the Borrower is the surviving entity in any such merger, (y) the Borrower provides written notice to the Agent of such merger not less than thirty (30) days prior thereto, and (z) the Borrower executes any UCC financing statements or amendments or any applicable Governmental Authority's equivalent thereof in connection with such merger in order to maintain the Agent's first priority perfected security interest in the Collateral and (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 other wholly-owned Subsidiary so long as (x) the surviving Subsidiary is a guarantor of the Borrower, PROVIDED, that "Guaranteed Obligations" as such term is defined in any such merger, the Borrower or such wholly-owned Subsidiary shall be the surviving corporation, PROVIDED, FURTHER, that in each case, Sweet Factory Guaranty (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, (By) the Borrower shall give provides written notice to the Agent at least ten of such merger between Subsidiaries not less than thirty (1030) days prior written notice thereto, and (z) the surviving Subsidiary executes any UCC financing statements or amendments or any Governmental Authority's equivalent thereof in connection with such merger in order to maintain the Agent's first priority perfected security interest in the Collateral and, if applicable, second-priority perfected security interest in the "Collateral" of any such sale, merger or other transferthe Canadian Subsidiary (as defined in the Canadian Subsidiary Security Agreement)."
(l) SECTIONS 6.4(B), (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 Subsidiary so merged ), and (D) no Default or Event of Default shall have occurred or be continuing or would occur after giving effect thereto or are hereby amended in their entirety as a result thereof.
(b) 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 interests of the Agent or the Lenders.follows:
Appears in 1 contract