Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that: (a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary; (i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders; (c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively; (d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; (e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02; (f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and (g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 8 contracts
Sources: Credit Agreement (West Corp), Credit Agreement (West Corp), Credit Agreement (West Corp)
Fundamental Changes. MergeThe Borrower will not, dissolveand will not permit any other Restricted Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of (whether in one transaction doubt, shall not restrict the Borrower or in a series of transactions) all or substantially all of any Restricted Subsidiary from changing its assets (whether now owned or hereafter acquired) to or in favor of any Personorganizational form), except that:
(ai) any Restricted Subsidiary may merge or consolidate with (iA) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (iiB) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary, a Loan Party shall be Subsidiary (1) the continuing or surviving Person and shall be a Subsidiary Loan Party or (B2) no Domestic if the continuing or surviving Person is not a Subsidiary may merge with and into a Foreign SubsidiaryLoan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(iii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (iiB) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(ciii) any Restricted Subsidiary may Dispose make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (iA) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or Loan Party, (iiB) to the extent constituting an Investment, such Investment must be is a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and 7.03, respectivelyany promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(div) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (iA) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (A1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofa Covered Jurisdiction, (B2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (C3) each GuarantorLoan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have by a supplement reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Guaranty confirmed Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F4) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(ev) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.027.04; provided that (i) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its the Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, Sections 6.11 and 6.12;
(iivi) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, effect a merger, dissolution, liquidation, liquidation consolidation or Disposition, the purpose of which is amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 8 contracts
Sources: Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(ai) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the a Borrower (including a merger, the purpose of which is to reorganize the a Borrower into a new jurisdictionjurisdiction in the United States); provided that such Borrower (xas a newly recognized entity) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries); provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or Holdings, the Parent Borrower, Safeway or any Subsidiary may change its legal form if the Parent Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Subsidiaries Albertson’s Group and if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, (x) any Borrower shall remain a Borrower and (y) a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Holdings or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is other than Holdings) or a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 10.2 (other than Section 10.2(e)) and 7.0310.3, respectively;
(d) so long as no Default exists or would result therefrom, the a Borrower may merge with any other Person; provided that (i) the such Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the a Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents Financing Agreements to which the such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor BorrowerCompany’s obligations under this Agreementthe Financing Agreements, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Financing Agreements, (E) if requested by the Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Financing Agreements, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, provided further that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement;
(e) so long as no Default exists or would result therefromtherefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.0210.2; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or a Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 9.9 to the extent such merger is an Investment permitted under Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.0510.5; and
(g) any merger, dissolution, liquidation, consolidation or Disposition in connection with the Transactions or in connection with an IPO Reorganization, in each case, shall be permitted.
Appears in 7 contracts
Sources: Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (SSI - AK Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, Merge into or consolidate with any other Person, or permit any other Person to merge into another Personor consolidate with it, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its the assets (whether now owned or hereafter acquired) of the Borrowers and the Restricted Subsidiaries on a consolidated basis, taken as a whole, to or in favor of any other Person, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;:
(ea) so long as no Default exists Any Borrower or would result therefrom, any Restricted Subsidiary may merge with or acquire another Person, through a stock, asset or any other similar transaction, which is in the business of specialty chemicals or any related business and related equipment (or any business reasonably ancillary or complementary thereto) if (i) such Borrower or such Restricted Subsidiary is the surviving entity, (ii) such acquisition is friendly and is done with the recommendation of the acquiree’s board of directors or similar governing body and (iii) such acquisition constitutes a Permitted Acquisition;
(b) any Restricted Subsidiary may merge with a Loan Party or a Wholly-Owned Restricted Subsidiary if (i) such Loan Party or such Wholly-Owned Restricted Subsidiary, as the case may be, is the surviving entity of such merger (provided that, if such merger involves (x) a Subsidiary Guarantor, the surviving entity of such merger shall be a Subsidiary Guarantor and (y) any Borrower, the surviving entity of such merger shall be the Borrower) and (ii) immediately after giving effect to such merger, no Default shall have occurred or be continuing;
(c) ESI or any of its Subsidiaries may enter a Permitted Intercompany Transaction;
(d) any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.028.05 (other than Investments permitted pursuant to clause (f) of the definition of “Permitted Investments”); provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary (and, which together with each of its Restricted Subsidiariesif such merger or consolidation involves a Borrower, the continuing or surviving Person shall be such Borrower) and shall have complied with the requirements applicable provisions of Section 6.11Sections 7.12 and 7.14 and the Collateral Documents;
(e) any Immaterial Subsidiary may be liquidated or dissolved; and
(f) ESI may effect the Arysta Sale. For the avoidance of doubt, it is understood and agreed that at any time PDH may merge with and/or into ESI or MacDermid (ii) when any Restricted Subsidiary that so long as ESI or MacDermid, as the case may be, is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person in such merger) or another Loan Party, as the case may be, and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof nothing herein shall be deemed to prohibit or the District of Columbia except to the extent otherwise limit such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 7 contracts
Sources: Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc)
Fundamental Changes. MergeNeither the Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than 7.02(e)) or 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;; and
(d) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to preserves the enforceability of this Agreement, the applicable Loan Guaranty and the Collateral Documents against and the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;; and
(e) so long as no Default exists or would result therefromtherefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment permitted under Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) the Borrower and its Subsidiaries may consummate Permitted Intercompany Activities, the Spin-Off Transaction, the Timeshare Disposition (individually or in the aggregate) and related transactions.
Appears in 7 contracts
Sources: Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.)
Fundamental Changes. MergeNone of the Covenant Parties or any of their Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transaction), except that:
(a) any Restricted Subsidiary (other than a Borrower) may merge with (i) the any Borrower (including a merger, the purpose of which is to reorganize the such Borrower into a new jurisdiction); provided that (x) the such Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any Covenant Party or one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary (other than a Covenant Party) may liquidate or dissolve or change its legal form if the Borrower ▇▇▇▇▇▇▇ determines in good faith that such action is in the best interests interest of the Borrower ▇▇▇▇▇▇▇ and its Subsidiaries and if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Covenant Party or Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower a Covenant Party or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively;; and
(d) so long as no Default exists or would result therefrom, the any Borrower may merge with any other Person; provided that (i) the such Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the such Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofthereof (or, in the case of the Dutch Borrower, an entity organized or existing under the laws of The Netherlands), (B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) each mortgagor of a Mortgaged Propertymortgaged property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F) the such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement;; and
(e) so long as no Default exists or would result therefrom, any Covenant Party or any Restricted Subsidiary (other than a Borrower) may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Covenant Party or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(gf) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 7 contracts
Sources: Credit Agreement (Nielsen Holdings PLC), Credit Agreement (Nielsen Holdings N.V.), Credit Agreement (Nielsen Holdings N.V.)
Fundamental Changes. MergeHoldings will not, dissolvenor will it permit any Restricted Subsidiary to, liquidatemerge into or consolidate or amalgamate with any other Person, or permit any Person to merge into or consolidate with it, or into another Personliquidate or dissolve, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its the assets (whether now owned or hereafter acquired) of Holdings and the Restricted Subsidiaries, taken as a whole, to or in favor of any Person, except that:
(a) any Restricted Subsidiary Loan Party (other than the Borrower) may merge merge, consolidate or amalgamate with (iA) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (iiB) any one or more other Loan Parties;
(b) any Restricted SubsidiariesSubsidiary of Holdings (other than the Borrower) that is not a Loan Party may merge, consolidate or amalgamate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, (AB) when any Restricted Subsidiary one or more other Loan Parties; provided that is a Loan Party is merging with another Restricted Subsidiary, a such Loan Party shall be the continuing or surviving Person and or (BC) no Domestic Subsidiary may merge with and into a Foreign Subsidiaryone or more other Restricted Subsidiaries of Holdings that are not Loan Parties;
(ic) any Restricted Subsidiary that is not a Loan Party may merge (other than the Borrower or consolidate with or into any other Subsidiary that is not a Loan Party and (iiParty) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of Holdings and the Borrower Restricted Subsidiaries, taken as a whole, and its Subsidiaries and if is not materially disadvantageous to the LendersLenders and does not impair the Guarantee or the Lien of the Collateral Agent in any material respect, taken as a whole;
(ci) any Restricted Subsidiary Loan Party may Dispose make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or any other Loan Party and (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a any Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelymay make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Loan Party or any other Restricted Subsidiary that is not a Loan Party;
(de) so long as no Default exists Holdings may merge, amalgamate or would result therefrom, the Borrower may merge consolidate with any other Person; provided that (iA) Holdings shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not Holdings (any such Person, the “Successor Holdings”), (1) such Successor Holdings shall be an entity organized or existing under the laws of the United States, any State thereof or the District of Columbia, (2) such Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agents, (3) each Loan Party other than the Borrower, unless it is the other party to such merger, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agents, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to such Successor Holdings’ obligations under this Agreement and the other Loan Documents and (4) Holdings shall have delivered to the Administrative Agents a certificate of a Responsible Officer, stating that such merger, amalgamation or consolidation complies with this Agreement; provided, further, that (x) if such Person is not a Loan Party, no Event of Default exists after giving effect to such merger, amalgamation or consolidation and (y) if the foregoing requirements are satisfied, such Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement and the other Loan Documents; provided, further, that Holdings agrees to provide any documentation and other information about such Successor Holdings as shall have been reasonably requested in writing by any Lender through the Applicable Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act;
(f) the Borrower may merge, amalgamate or consolidate with any other Person; provided that (A) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, State thereof or the District of Columbia or any territory thereofColumbia, (B2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative AgentAgents, (C3) each GuarantorLoan Party other than the Borrower, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Guaranty confirmed Administrative Agents, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is Agreement and the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, Loan Documents and (F4) the Borrower shall have delivered to the Administrative Agent an officer’s Agents a certificate and an opinion of counsela Responsible Officer, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that (x) if such Person is not a Loan Party, no Event of Default exists after giving effect to such merger, amalgamation or consolidation and (y) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided, further, that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender through the Applicable Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act;
(ei) so long as no Default exists any Loan Party (other than Holdings or would result therefromthe Borrower) may merge, any Restricted Subsidiary may merge consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.026.04 (other than Section 6.04(u)); provided that the continuing or surviving Person shall be a Loan Party, which shall have complied with the requirements of Sections 5.13 and 5.14, and (iii) any Restricted Subsidiary that is not a Loan Party may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 6.04 (other than Section 6.04(u)); provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person Sections 5.13 and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.025.14;
(fh) the Borrower [reserved];
(i) Holdings and the Restricted its Subsidiaries may undertake or consummate the Mergerany Tax Restructuring; and
(gj) so long as no Default exists any Restricted Subsidiary (other than Holdings or would result therefrom, the Borrower) may effect a merger, dissolution, liquidation, liquidation consolidation or Disposition, the purpose of which is amalgamation to (1) effect a Disposition permitted pursuant to Section 7.056.05 (other than Section 6.05(e)) or (2) an Investment permitted pursuant to Section 6.04 (other than Section 6.04(u)).
Appears in 7 contracts
Sources: Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Holdings Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a such Loan Party that is a Subsidiary of the Borrower shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Party, and (ii) any Subsidiary of the Borrower may liquidate or dissolve or and, any Restricted Subsidiary may change its legal form if form, in each case, only to the Borrower determines extent permitted by the Indenture Documentation and only so long as (A) the Lien on or security interest in good faith that any Collateral held by it under the Loan Documents shall remain in effect to the same extent as immediately prior to such action is change, and (B) with respect to any change in legal form, the best interests Guarantee of the Borrower and its Subsidiaries and if not materially disadvantageous Obligations by such Restricted Subsidiary shall remain in effect to the Lenderssame extent as immediately prior to such change;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be a Loan Party that is a Subsidiary of the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections Section 7.03 (other than Section 7.02 and 7.03Section 7.03(f)), respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreementcorporation;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.027.03 (other than Section 7.03(f)); provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 (other than Section 7.05(e)), may be effected;
(g) Intentionally Left Blank; and
(h) so long as the Nexstar Credit Agreement has not been terminated, the Nexstar Entities may enter into transactions permitted under the terms of Section 7.04 of the Nexstar Credit Agreement.
Appears in 6 contracts
Sources: Credit Agreement (Nexstar Broadcasting Group Inc), Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a such Loan Party that is a Subsidiary of the Ultimate Parent shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Party, and (ii) any Subsidiary of the Borrower may liquidate or dissolve or and, any Restricted Subsidiary may change its legal form if form, in each case, only to the Borrower determines extent permitted by the Indenture Documentation and only so long as (A) the Lien on or security interest in good faith that any Collateral held by it under the Loan Documents shall remain in effect to the same extent as immediately prior to such action is change, and (B) with respect to any change in legal form, the best interests Guarantee of the Borrower and its Subsidiaries and if not materially disadvantageous Obligations by such Restricted Subsidiary shall remain in effect to the Lenderssame extent as immediately prior to such change;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor Loan Party that is a Domestic Subsidiary, Subsidiary of the transferee must also be a Domestic Subsidiary) Ultimate Parent or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections Section 7.03 (other than Section 7.02 and 7.03Section 7.03(f)), respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreementcorporation;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.027.03 (other than Section 7.03(f)); provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 (other than Section 7.05(e)), may be effected;
(g) a merger or consolidation of the Intermediate Parent into Ultimate Parent or Borrower, in each case, only to the extent permitted by the Indenture Documentation and only so long as (i) the Lien on or security interest in any Collateral held by it under the Loan Documents shall remain in effect to the same extent as immediately prior to such change, and (ii) with respect to any change in legal form, the Guarantee of the Obligations by such Person shall remain in effect to the same extent as immediately prior to such change;
(h) so long as the Mission Credit Agreement has not been terminated, the Mission Entities may enter into transactions permitted under the terms of Section 7.04 of the Mission Credit Agreement.
Appears in 6 contracts
Sources: Credit Agreement (Nexstar Broadcasting Group Inc), Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Fundamental Changes. MergeCompany will not, dissolvenor will it permit any of its Material Subsidiaries to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(ax) that any Restricted Subsidiary may merge with (other than a Receivables Subsidiary) (i) may merge into, amalgamate or consolidate with Company in a transaction in which Company is the Borrower (including a mergersurviving corporation, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) may merge into, amalgamate or consolidate with any one Credit Party in a transaction in which the surviving entity is or more other Restricted Subsidiaries; provided that becomes a Credit Party, (Aiii) when any Restricted Subsidiary that is not a Loan Credit Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge into, amalgamate or consolidate with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Credit Party or any Person that becomes a Credit Party simultaneously with or promptly following such merger and (iv) may merge into, amalgamate or consolidate with or into any other Subsidiary Person that is not in accordance with the terms hereof becomes a Loan Credit Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiaryconnection with a Permitted Acquisition; provided that if the transferor in such a transaction Subsidiary is a Guarantor, then (i) Material Subsidiary the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also surviving entity shall be a Domestic Material Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfiedany Person acquired in a Permitted Acquisition is not a Wholly-Owned Domestic Subsidiary, the Successor Borrower will succeed toit shall not be required to be a Credit Party, and be substituted for, the Borrower under this Agreement;
(ey) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge into, amalgamate or consolidate with Target in connection with the Target Acquisition and (z) any other Subsidiary may merge into, amalgamate or consolidate into another Person in order to effect an Investment connection with the consummation of a transaction permitted pursuant to by Section 7.028.4. No Unrestricted Entity shall enter into any merger or consolidation into or with Company or any of its Subsidiaries; provided that (i) the continuing a Permitted Aerospace JV may merge, amalgamate or surviving Person shall be consolidate with Company or any Subsidiary in a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary transaction that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Permitted Acquisition.
Appears in 6 contracts
Sources: Credit Agreement (Ball Corp), Credit Agreement (Ball Corp), Credit Agreement (Ball Corp)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary other than the Borrower may merge or amalgamate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; Subsidiaries (provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, a Loan Party shall be the a continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into Person, as applicable, or the resulting entity shall succeed as a Foreign Subsidiarymatter of law to all of the Obligations of such Loan Party);
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) (A) any Restricted Subsidiary may liquidate or liquidate, dissolve or wind up, and (B) any Restricted Subsidiary may change its legal form form, in each case, if (x) the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders and (y) in the case of any Loan Party, the Collateral Agent’s continuing security interest in such Loan Party’s property or assets is not adversely affected and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then either (ix) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (iiy) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections Section 7.02 and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or amalgamate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) the Successor Company shall cause such amendments, supplements or other instruments to be executed, delivered, filed and recorded (and deliver a copy of same to the Administrative Agent and Collateral Agent) in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Collateral Agent on the Collateral owned by or transferred to the Successor Company, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the UCC of the relevant states, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (DE) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (EF) each mortgagor the Administrative Agent shall have received all documentation and other information about the Successor Company that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and (G) at the time of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, be in pro forma compliance with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Financial Covenant; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.026.10;
(f) the Borrower Transactions and the Restricted Subsidiaries Spin-Off may consummate the Merger; andbe consummated;
(g) so long as no Event of Default exists or would result therefrom, a merger, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected (other than pursuant to Section 7.05(e) and other than a Disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries); and
(h) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, in each case, by and among the Borrower and/or its Restricted Subsidiaries, the purpose of which is to effect the Reorganization.
Appears in 5 contracts
Sources: Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Hotels & Resorts, Inc.)
Fundamental Changes. (a) Merge, dissolveDivide, liquidatecombine, or consolidate with or into another any Person, or Dispose of liquidate (or suffer any liquidation), wind up its affairs, or dissolve itself (or suffer any dissolution), in each case whether in one a single transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose that so long as no Default or Event of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing Default then exists or surviving Person and (y) such merger does not would result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
therefrom (i) any Subsidiary that is not a Loan Credit Party may merge with, or consolidate with sell, assign, transfer, lease, or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose otherwise dispose of all or substantially all of its assets to, any other Credit Party (upon voluntary liquidation including any Borrower), or otherwise) to the Borrower Divide itself into two or to another Restricted Subsidiarymore Credit Parties; provided that that, (A) if the transferor in any Borrower is party to any such a transaction is a Guarantormerger, then (i) the transferee such Borrower must either be the Borrower surviving Person; (B) no Credit Party may sell, assign, transfer, lease, or otherwise dispose of all or substantially all of its assets except to a Guarantor Borrower; and (and, if the transferor is a Domestic SubsidiaryC) in any Division of any Credit Party, the transferee Persons resulting from such Division must also be all become Credit Parties of the same type; upon such Division becoming effective; e.g., all Persons resulting from the Division of a Domestic Subsidiary) or Borrower must become borrowers, in accordance with Section 9.17; (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted any Domestic Subsidiary which is not a Loan Credit Party may merge with, or sell, assign, transfer, lease, or otherwise dispose of all or substantially all of its assets to, any other Domestic Subsidiary which is not a Credit Party, or Divide itself into two or more Domestic Subsidiaries which are not Credit Parties; (iii) any Foreign Subsidiary may merge with, or sell, assign, transfer, lease, or otherwise dispose of all or substantially all of its assets to, any other wholly owned Foreign Subsidiary or Divide itself into two or more Foreign Subsidiaries; (iv) any Subsidiary may, in accordance with Applicable Law, liquidate or dissolve itself into a Credit Party or another Domestic Subsidiary which is wholly owned by a Credit Party; (v) any Foreign Subsidiary of a Credit Party may liquidate or dissolve itself into another wholly owned Foreign Subsidiary of a Credit Party in accordance with Sections 7.02 Applicable Law;
(b) Without giving Administrative Agent at least fifteen (15) days prior written notice thereof and 7.03complying with all reasonable requirements of Administrative Agent in regard thereto, respectivelyincluding with respect to execution and delivery of all documents, certificates, and information requested by Administrative Agent to maintain the validity, perfection, and priority of the security interests of Administrative Agent in the Collateral, (i) change its legal name or the jurisdiction in which it is organized; (ii) change its tax, charter, or other organizational identification number; (iii) change its organizational form (i.e., corporation, limited liability company, partnership, etc.); or (iv) change the location of its chief executive office or other office where material books or records are kept;
(c) Locate its chief executive office or keep its books and records in any jurisdiction other than in a State within the United States of America or the District of Columbia;
(d) so long Amend, restate, or modify its Organizational Documents in any manner which could be adverse to any Secured Party or could reasonably be expected to have a Material Adverse Effect;
(e) Make any material change in accounting treatment or reporting practices, except as no Default exists required by GAAP and in accordance with Section 1.2 or would result therefromchange its year-end for accounting purposes from the Fiscal Year ending December 31;
(f) Engage materially in any business other than a business in substantially the same field as the business conducted by Credit Parties and the Subsidiaries on the Closing Date or a business reasonably incidental, the Borrower may merge with any other Personrelated or complementary thereto; provided that or
(g) (i) Authorize, issue or sell any Equity Interests (other than to its parent as existing on the Borrower shall be the continuing or surviving corporation Closing Date), or (ii) if the Person formed by grant any options, warrants or surviving other rights to purchase any such merger or consolidation is not the Borrower Equity interests (any other than to such Person, the “Successor Borrower”parent), or (Aiii) in any way change the Successor Borrower shall be an entity organized or existing under the laws capitalization of the United Statesany Credit Party from that set forth on Schedule 8.4, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement in each case unless and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory except to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement extent permitted pursuant to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable other Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Document.
Appears in 5 contracts
Sources: Credit Agreement (Forbes Energy Services Ltd.), Credit Agreement (Forbes Energy Services Ltd.), Credit Agreement (Forbes Energy Services Ltd.)
Fundamental Changes. MergeNeither the Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than Section 7.02(e)) or Section 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to preserves the enforceability of this Agreement, the applicable Loan Guaranty and the Collateral Documents against and the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefromtherefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment permitted under Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) the Borrower and its Subsidiaries may consummate Permitted Intercompany Activities.
Appears in 5 contracts
Sources: Credit Agreement (Alight Group, Inc.), Credit Agreement (Alight Inc. / DE), Credit Agreement (Alight Inc. / DE)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person; provided, except that:
, notwithstanding the foregoing provisions of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) any Restricted Subsidiary the Borrower may merge or consolidate with (i) the Borrower (including a mergerany of its Subsidiaries, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) provided, that, the Borrower shall be the continuing or surviving Person and Person, (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (iib) any one Loan Party (other than the Borrower) may merge or more consolidate with any other Restricted Subsidiaries; provided that Loan Party (Aother than the Borrower), (c) when any Restricted Subsidiary that is not a Loan Party is merging may be merged or consolidated with another Restricted Subsidiaryor into any Loan Party, a Loan Party shall be provided, that, the continuing or surviving Person shall be such Loan Party or concurrently therewith become a Loan Party, (d) any Subsidiary that is not a Loan Party may be merged or consolidated with or into any other Subsidiary that is not a Loan Party, (e) any Subsidiary may dissolve, liquidate or wind up its affairs at any time, provided, that, such dissolution, liquidation or winding up could not reasonably be expected to have a Material Adverse Effect and all of its assets and business are transferred to a Loan Party or solely in the case of a Subsidiary that is not a Loan Party, another Subsidiary that is not a Loan Party prior to or concurrently with such dissolution, liquidation or winding up, (Bf) no Domestic in connection with any Permitted Acquisition or other Investment permitted under Section 8.02 (other than by reference to this Section 8.04 (or any sub-clause hereof)) the Borrower or any Subsidiary may merge into or consolidate with and any other Person or permit any other Person to merge into a Foreign Subsidiary;
or consolidate with it, so long as (i) the Person surviving such merger with any Subsidiary shall be a direct or indirect Wholly Owned Subsidiary (and, if such Subsidiary is a Domestic Subsidiary, a Wholly Owned Domestic Subsidiary), (ii) in the case of any such merger to which the Borrower is a party, the Borrower is the surviving Person, and (iii) in the case of any such merger to which a Loan Party (other than the Borrower) is a party, the surviving Person is such Loan Party or concurrently therewith becomes a Loan Party, and (g) in connection with any Disposition permitted under Section 8.05 (other than by reference to this Section 8.04 (or any sub-clause hereof)) any Subsidiary that is not a Loan Party may merge into or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into permit any other Person that is not organized under the Laws of the United States, any state thereof to merge into or the District of Columbia except consolidate with it to the extent consummate such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 5 contracts
Sources: Credit Agreement (Societal CDMO, Inc.), Credit Agreement (Societal CDMO, Inc.), Credit Agreement (Recro Pharma, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form (subject, in the case of any change of legal form, to any such Subsidiary that is a Guarantor remaining a Guarantor) if the Borrower Holdings determines in good faith that such action is in the best interests of the Borrower Holdings and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorGuarantor or the Borrower, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty in form and substance reasonably satisfactory to the Administrative Agent confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement in form and substance reasonably satisfactory to the Administrative Agent confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage in form and substance reasonably satisfactory to the Administrative Agent confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (F) immediately after giving effect to such merger or consolidation, the Successor Company and the Restricted Subsidiaries shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.11, such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such merger or consolidation had been consummated as of the first day of the fiscal period covered thereby and evidenced by a certificate from the Chief Financial Officer of the Successor Company demonstrating such compliance calculation in reasonable detail, and (FG) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, provided further that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) if such Restricted Subsidiary is a Loan Party, a Loan Party shall be the continuing or surviving Person, and (ii) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Original Closing Date Merger; and;
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05;
(h) so long as no Default exists or would result therefrom, Holdings may create a new intermediate holding company (“New Intermediate Holdings”) and transfer the stock of the Borrower to it; provided that (i) New Intermediate Holdings shall expressly assume all the obligations of Holdings under this Agreement, the Security Agreement, the Guaranty and the other Loan Documents to which Holdings is a party (the “Assumed Documents”) by executing and delivering a Joinder Agreement and taking all actions to continue perfection in the security interest in the assets of Holdings, and (ii) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that (A) the Secured Parties continue to have a perfected security interest in all of the Collateral, including the stock of the Borrower, (B) each of the Assumed Documents is a legal, valid and binding obligation of New Intermediate Holdings, enforceable against New Intermediate Holdings in accordance with its terms (subject to customary assumptions and qualifications) and (C) solely with respect to the certificate of a Responsible Officer, Holdings, the Borrower and the other Loan Parties taken as a whole are Solvent and no Default under any of the Loan Documents has occurred and is continuing; provided further, that if the foregoing are satisfied, New Intermediate Holdings will succeed to, and be substituted for, Holdings under the Assumed Documents and Holdings shall be automatically and unconditionally released from its obligations under the Assumed Documents; and
(i) the Aspen Acquisition may be consummated.
Appears in 5 contracts
Sources: Fourth Amendment Agreement (CRC Health CORP), Credit Agreement (CRC Health CORP), Third Amendment Agreement (CRC Health CORP)
Fundamental Changes. MergeNeither the Company nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (including, in each case, pursuant to a Division), except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower Company (including a merger, the purpose of which is to reorganize the Borrower Company into a new jurisdiction); provided that (x) the Borrower Company shall be the continuing or surviving Person and (y) such merger does not result in the Borrower Company ceasing to be incorporated a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or the Company or any Subsidiary may change its legal form (x) if the Borrower Company determines in good faith that such action is in the best interests interest of the Borrower Company and its Subsidiaries and if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than 7.02(e)) or 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if or the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Company or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;; and
(d) so long as no Default exists or would result therefrom, the Borrower Company may merge or consolidate with any other Person; provided that (i) the Borrower Company shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower Company (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower Company under this Agreement and the other Loan Documents to which the Borrower Company is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower Company shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to preserves the enforceability of this Agreement, the applicable Loan Guaranty and the Collateral Documents against and the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower Company under this Agreement;; and
(e) so long as no Default exists or would result therefromtherefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Company, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment permitted under Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) the Company and its Subsidiaries may consummate Permitted Intercompany Activities and related transactions.
Appears in 5 contracts
Sources: Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or enter into another Personany similar combination with, or Dispose enter into any Asset Disposition of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned in a single transaction or hereafter acquireda series of transactions) to with, any other Person or in favor of liquidate, wind-up or dissolve itself (or suffer any Personliquidation or dissolution), except thatexcept:
(a) any Restricted Subsidiary may merge with (i) any Wholly-Owned Subsidiary of the Borrower may be merged, amalgamated or consolidated with or into the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United Statesentity), any state thereof or the District of Columbia, or (ii) any one Wholly-Owned Subsidiary of the Borrower may be merged, amalgamated or more other Restricted Subsidiaries; consolidated with or into any Subsidiary Guarantor (provided that (A) when any Restricted the Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party Guarantor shall be the continuing or surviving Person entity or simultaneously with such transaction, the continuing or surviving entity shall become a Subsidiary Guarantor and the Borrower shall comply with Section 8.13 in connection therewith) or (Biii) no Domestic any Wholly-Owned Subsidiary of the Borrower that is not a Credit Party may merge be merged, amalgamated or consolidated with or into any Pledged Foreign Subsidiary (provided that the Pledged Foreign Subsidiary shall be the continuing or surviving entity or simultaneously with such transaction, the continuing or surviving entity shall become a Pledged Foreign Subsidiary and into a Foreign Subsidiarythe Borrower shall comply with Section 8.13 in connection therewith);
(b) (i) any Subsidiary Non-Credit Party that is not a Loan Party Pledged Foreign Subsidiary may merge be merged, amalgamated or consolidate consolidated with or into into, or be liquidated into, any other Subsidiary that is not a Loan Party and Pledged Foreign Subsidiary, (ii) any Non-Credit Party that is a Foreign Subsidiary (other than any Pledged Foreign Subsidiary) may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Non-Credit Party and (iii) any Non-Credit Party that is a Domestic Subsidiary may liquidate be merged, amalgamated or dissolve consolidated with or change its legal form if the Borrower determines in good faith into, or be liquidated into, any other Non-Credit Party that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lendersa Domestic Subsidiary;
(c) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation liquidation, dissolution, winding up or otherwise) to the Borrower or to another Restricted Subsidiaryany Subsidiary Guarantor; provided that if that, with respect to any such disposition by any Non-Credit Party, the transferor in consideration for such a transaction is a Guarantor, then disposition shall not exceed the fair value of such assets;
(i) the transferee must either be the Borrower any Non-Credit Party that is a Pledged Foreign Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any other Pledged Foreign Subsidiary, (ii) any Non-Credit Party that is a Guarantor Foreign Subsidiary (andother than any Pledged Foreign Subsidiary) may dispose of all or substantially all of its assets (upon voluntary liquidation, if the transferor dissolution, winding up or otherwise) to any other Non-Credit Party and (iii) any Non-Credit Party that is a Domestic Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any other Non-Credit Party that is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(de) so long as no Default exists or would result therefrom, any Wholly-Owned Subsidiary of the Borrower may merge with or into the Person such Wholly-Owned Subsidiary was formed to acquire in connection with any other Personacquisition permitted hereunder (including any Permitted Acquisition permitted pursuant to Section 9.3(g)); provided that (i) in the Borrower case of any merger involving a Wholly-Owned Subsidiary that is a Domestic Subsidiary, (x) a Subsidiary Guarantor shall be the continuing or surviving corporation entity or (y) simultaneously with such transaction, the continuing or surviving entity shall become a Subsidiary Guarantor and the Borrower shall comply with Section 8.13 in connection therewith and (ii) if in the Person formed by case of any merger involving a Wholly-Owned Subsidiary that is a Pledged Foreign Subsidiary, (x) the Pledged Foreign Subsidiary shall be the continuing or surviving any entity or (y) simultaneously with such merger or consolidation is not the Borrower (any such Persontransaction, the “Successor Borrower”), (A) the Successor Borrower continuing or surviving entity shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement become a Pledged Foreign Subsidiary and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to comply with Section 8.13 in connection therewith; and
(f) any Person may merge into the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement Borrower or any Collateral Document comply of its Wholly-Owned Subsidiaries in connection with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment a Permitted Acquisition permitted pursuant to Section 7.029.3(g); provided that (i) in the case of a merger involving the Borrower, a Subsidiary Guarantor or a Pledged Foreign Subsidiary, the continuing or surviving Person shall be the Borrower, such Subsidiary Guarantor or such Pledged Foreign Subsidiary and (ii) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Wholly-Owned Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Borrower.
Appears in 5 contracts
Sources: Credit Agreement (SYNAPTICS Inc), First Amendment and Lender Joinder Agreement (SYNAPTICS Inc), Credit Agreement (SYNAPTICS Inc)
Fundamental Changes. MergeThe Borrower will not, dissolveand will not permit any Restricted Subsidiary to, liquidate, merge into or consolidate or amalgamate with or into another any other Person, or Dispose of permit any other Person to merge into or consolidate with it, or liquidate or dissolve (whether including, in one transaction or in each case, pursuant to a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonDivision), except that:
(a) any Restricted Subsidiary may merge merge, consolidate or amalgamate with (ix) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (x) the Borrower shall be the continuing or surviving Person and or (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging, consolidating or amalgamating with another Restricted Subsidiary either (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and shall be a Subsidiary Loan Party or (B) no Domestic if the continuing or surviving Person is not a Subsidiary may merge with and into a Foreign SubsidiaryLoan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is permitted under Section 6.04;
(ib) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then either (iA) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or Loan Party, (iiB) to the extent constituting an Investment, such Investment must be a permitted an Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party permitted by Section 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for Fair Market Value and any promissory note or other non-cash consideration received in accordance with Sections 7.02 and 7.03, respectivelyrespect thereof is an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;
(d) so long as no Default exists or would result therefrom, the Borrower may merge merge, amalgamate or consolidate with any other Person; provided that (iA) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A1) the a Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B2) the a Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (C3) each GuarantorLoan Party other than the Borrower, unless it is the other party to such merger or consolidation, amalgamation or consolidation, shall have by a supplement reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Guaranty confirmed Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the a Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F4) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that (x) if such Person is not a Loan Party, no Event of Default exists after giving effect to such merger, amalgamation or consolidation and (y) if the foregoing requirements are satisfied, the a Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided, further, that the Borrower agrees to use commercially reasonable efforts to provide any documentation and other information about such Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act and the Beneficial Ownership Regulation;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.026.04; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its the Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person Sections 5.11 and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;5.12; and
(f) the Borrower and the any Restricted Subsidiaries Subsidiary may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, effect a merger, dissolution, liquidation, liquidation consolidation or Disposition, the purpose of which is amalgamation to effect a Disposition permitted pursuant to Section 7.056.05.
Appears in 5 contracts
Sources: Credit Agreement (EverCommerce Inc.), Credit Agreement (EverCommerce Inc.), Credit Agreement (EverCommerce Inc.)
Fundamental Changes. MergeNone of the Parent, the Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactionstransactions and including by way of, or as a result of, any Division/Series Transaction) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Parent (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Parent shall be the continuing or surviving Person and such merger does not result in the Parent ceasing to be a corporation, limited liability company or limited partnership organized under the Laws of the United States, any state thereof or the District of Columbia, (ii) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated a corporation, limited liability company or limited partnership organized under the Laws of the United States, any state thereof or the District of Columbia, Columbia or (iiiii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging or amalgamating with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or the Parent, the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower Parent and its Subsidiaries and if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than Section 7.02(e)) or Section 7.05 (other than Section 7.05(e)) or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent, the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would immediately result therefrom, the Parent or the Borrower (as applicable, the “Subject Entity”) may merge or consolidate with any other Person; provided that (i) the Borrower Subject Entity shall be the continuing or surviving corporation or entity or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower Subject Entity (any such other Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower Subject Entity under this Agreement and the other Loan Documents to which the Borrower Subject Entity is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F) the Borrower Subject Entity shall have delivered to the Administrative Agent an officer’s a certificate signed by a Responsible Officer of the Subject Entity and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to preserves the enforceability of this Agreement, the applicable Loan Guaranty and the Collateral Documents against and the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower Subject Entity under this Agreement;
(e) so long as no Event of Default exists or would immediately result therefromtherefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment permitted under Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(f) the Parent, the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05;
(g) the Parent, the Borrower and the Subsidiaries may consummate Permitted Intercompany Activities; and
(h) the Parent, the Borrower and the other Subsidiaries may effect the formation, dissolution, liquidation or Disposition of any Subsidiary pursuant to a Division/Series Transaction, provided that upon formation of such Subsidiary, the Borrower has complied with Section 6.11 to the extent applicable.
Appears in 5 contracts
Sources: First Amendment to Term Loan Credit Agreement (NGL Energy Partners LP), Term Loan Credit Agreement (NGL Energy Partners LP), Term Loan Credit Agreement (NGL Energy Partners LP)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted SubsidiarySubsidiary that is not a Loan Party, a the Loan Party shall be the continuing or surviving Person or the surviving entity shall substantially concurrently become a Loan Party; provided, further, that any security interests granted to the Administrative Agent for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and effect and perfected (Bto at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) no Domestic Subsidiary may merge with and into a Foreign Subsidiaryall actions required to maintain said perfected status have been or will promptly be taken, in each case, as required by Sections 6.11 or 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) any Restricted Subsidiary may liquidate or dissolve or and (iii) any Restricted Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Subsidiary Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e) or 7.02(h)) and 7.03, respectively;
(d) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation corporation; provided, further, that any security interests granted to the Administrative Agent for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation), the Successor Company shall, to the extent subject to the terms hereof, have complied with the requirements of Section 6.11 and all actions required to maintain said perfected status have been or will promptly be taken as required by Section 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement; or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, States or any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Event of Default exists has occurred and is continuing or would result therefromtherefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its such surviving Person’s Subsidiaries that are Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing 6.11 or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.13 to the extent such merger is an Investment permitted under Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(f) the Borrower and the Restricted Subsidiaries may consummate the MergerAcquisition, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(g) so long as no Event of Default exists has occurred and is continuing or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 or a Restricted Payment permitted pursuant to Section 7.06.
Appears in 4 contracts
Sources: First Lien Credit Agreement (Jason Industries, Inc.), Second Lien Credit Agreement (Jason Industries, Inc.), Second Lien Credit Agreement (Jason Industries, Inc.)
Fundamental Changes. MergeNeither the Borrower nor any of its respective Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge or consolidate with (i) the Borrower (including through a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted SubsidiarySubsidiary under this clause (a), a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the LendersLenders and any Collateral owned by such Restricted Subsidiary that is a Loan Party remains owned by a Restricted Subsidiary that is a Loan Party following such liquidation;
(c) the Borrower or any Restricted Subsidiary may Dispose convey, transfer, lease or otherwise dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that that, if the transferor in such a transaction is the Borrower or a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyGuarantor;
(d) the Borrower or any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 6.02 (including any Permitted Investment); provided that (i) in a merger or consolidation involving the Borrower, the continuing or surviving Person shall be the Borrower and (ii) in a merger or consolidation involving a Restricted Subsidiary, the continuing or surviving Person shall be the Restricted Subsidiary, and in each case the Borrower, together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 5.11;
(e) a merger, dissolution, liquidation, consolidation or Asset Disposition, shall be permitted if the purpose of such transaction is to effect an Asset Disposition permitted pursuant to Section 6.04 (or a disposition excluded in the definition of “Asset Disposition”);
(f) [reserved]; and
(g) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with any other PersonPerson (other than Parent or Holdings) or consummate a division or become a series of entities; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger merger, consolidation, division or consolidation series is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 4 contracts
Sources: Credit Agreement (Mattress Firm Group Inc.), Abl Credit Agreement (Mattress Firm Group Inc.), Credit Agreement (Mattress Firm Group Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its the assets (whether now owned or hereafter acquired) of the Borrower and its Restricted Subsidiaries, taken as a whole, to or in favor of any Person, except that, so long as no Event of Default exists or would result therefrom:
(a) any Restricted Subsidiary Relevant Party may merge or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)one or more Loan Parties; provided that (x) if the Borrower is a party to such merger or consolidation, it shall be the continuing or surviving Person Person, and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, otherwise a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(ib) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with the Borrower or into any other Restricted Subsidiary; provided that if the Borrower or a Restricted Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate is a party to such merger or dissolve consolidation, it shall be the continuing or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenderssurviving Person;
(c) any Restricted Subsidiary Loan Party may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then Loan Party;
(id) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a any Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelymay Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any Restricted Subsidiary;
(de) so long as no Default exists or would result therefrom, each of the Borrower and any of its Restricted Subsidiaries may merge into or consolidate with any Person other Personthan the Borrower or any of its Subsidiaries; provided provided, however, that in each case, immediately after giving effect thereto (i) in the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving case of any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted forparty, the Borrower under this Agreement;is the surviving Person and (ii) in the case of any other merger to which any Relevant Party (other than the Borrower) is a party, such Relevant Party is the surviving Person; and
(ef) so long as no Default exists (i) any Guarantor may dissolve, liquidate or would result therefrom, wind up its affairs at any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02time; provided that (i) all of the continuing assets of such Guarantor are transferred to another Guarantor or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, Borrower and (ii) when any Restricted Subsidiary that is not a Loan Party is merging with may dissolve, liquidate or wind up its affairs at any other Person, time; provided that all of the assets of such Restricted Subsidiary are transferred to another Restricted Subsidiary or a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Party.
Appears in 4 contracts
Sources: Revolving Credit Agreement (PBF Logistics LP), Revolving Credit Agreement (PBF Energy Co LLC), Revolving Credit Agreement (PBF Energy Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person; provided that, except that:
notwithstanding the foregoing provisions of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) a Domestic Borrower may merge or consolidate with another Domestic Borrower (or liquidate and contribute all its assets to another Domestic Borrower) and a Designated Borrower may merge or consolidate with another Designated Borrower (or liquidate and contribute all its assets to another Designated Borrower), (b) a Domestic Borrower may merge or consolidate with any Restricted Subsidiary, and a Restricted Subsidiary may merge with (i) the Borrower (including liquidate and contribute all its assets to a mergerDomestic Borrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the in each case such Domestic Borrower shall be the continuing or surviving Person and Person, (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (iic) any one Loan Party other than a Borrower may merge or more consolidate with (or liquidate and contribute its assets to) any other Restricted Subsidiaries; provided that Loan Party other than a Borrower, (Ad) when any Restricted Foreign Subsidiary that is a Restricted Subsidiary may be merged or consolidated with or into any Loan Party is merging with another Restricted Subsidiary, a provided that such Loan Party shall be the continuing or surviving Person and Person, (Be) no Domestic any Foreign Subsidiary that is a Restricted Subsidiary may be merged or consolidated with or into any other Foreign Subsidiary that is a Restricted Subsidiary, (f) any Borrower or Restricted Subsidiary may merge or consolidate with and into a Foreign Subsidiary;
any other Person so long as (i) the merger or consolidation constitutes a Permitted Acquisition, (ii) if such merger or consolidation involves a Borrower, such Borrower is the surviving entity, and (iii) if such merger or consolidation involves a Restricted Subsidiary (other than a Borrower), either such Restricted Subsidiary is the surviving entity or the other Person party to such merger or consolidation is the surviving entity and complies with Sections 7.12 and 7.14, (g) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Material Subsidiary may liquidate or dissolve or change its legal form liquidate if the Borrower Representative determines in good faith that such action dissolution or liquidation is in the best interests of the Borrower Loan Parties and its Subsidiaries and if is not materially disadvantageous to the Lenders;
, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, (ch) to the extent not otherwise permitted under the foregoing clauses, any Restricted Wholly Owned Subsidiary may Dispose that has sold, transferred or otherwise disposed of all or substantially all of its assets (upon voluntary liquidation in connection with a Disposition permitted under this Agreement and no longer conducts any active trade or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantorbusiness may be liquidated, then (i) the transferee must either be the Borrower or a Guarantor (andwound up and dissolved, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or Event of Default has occurred and is continuing or would result therefrom, the Borrower may merge with any other Person; provided that therefrom and (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement Loan Parties and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the their Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition make Dispositions permitted pursuant to by Section 7.058.05.
Appears in 4 contracts
Sources: Credit Agreement (Enpro Industries, Inc), Credit Agreement (Enpro Industries, Inc), Credit Agreement (Enpro Industries, Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) the Borrower may merge or consolidate with any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger or consolidation does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an InvestmentInvestment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other PersonPerson (so long as, to the extent constituting an Investment, such Investment shall be a permitted Investment in accordance with Section 7.02); provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.027.02 or (ii) for any other purpose; provided that (iA) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11, ; and (B) in the case of subclause (ii) when any only, if (1) the merger or consolidation involves a Guarantor and such Guarantor is not the surviving Person, the surviving Restricted Subsidiary that shall expressly assume all the obligations of such Guarantor under this Agreement and the other Loan Documents to which the Guarantor is a Loan Party is merging with any other Person, party pursuant to a Loan Party shall be supplement hereto or thereto in form reasonably satisfactory to the continuing or surviving Person Administrative Agent and (iii2) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of Total Leverage Ratio for the United States, any state thereof or the District of Columbia except to the extent Test Period immediately preceding such merger or consolidation is an Investment permitted under Section 7.02;
less than or equal to 6.00 to 1.00 (f) the Borrower and the Restricted Subsidiaries may consummate the Mergercalculated on a Pro Forma Basis); and
(gf) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 4 contracts
Sources: Credit Agreement (IASIS Healthcare LLC), Amended and Restated Credit Agreement (IASIS Healthcare LLC), Credit Agreement (IASIS Healthcare LLC)
Fundamental Changes. MergeNeither the Parent Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Parent Borrower ceasing to be incorporated a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party Party, and (ii) any Subsidiary may liquidate or dissolve or the Parent Borrower or any Subsidiary may change its legal form (x) if the Parent Borrower determines in good faith that such action is in the best interests interest of the Parent Borrower and its Subsidiaries and if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred as a Permitted Investment (other than any disposition or transfer made in reliance on clause (f) of the definition of “Permitted Investments”) or in accordance with Sections 7.05 or 7.06 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Borrower or a Guarantor will remain a Borrower or a Guarantor unless such Borrower or Guarantor is otherwise permitted to cease being a Borrower or a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyParty;
(d) so long as no Default exists or would result therefrom, the Parent Borrower may merge or consolidate with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantorother Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty (or, in the case of a Subsidiary Borrower, its obligations hereunder) shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantorother Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to preserves the enforceability of this Agreement, the applicable Loan Guaranty and the Collateral Documents against and the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person or Dispose of all or substantially all of its assets to another Person in order to effect a Permitted Investment or an Investment permitted pursuant to Section 7.02under 7.06; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment permitted under Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, shall not be prohibited by this Section 7.04; and
(g) the Parent Borrower and its Subsidiaries may consummate (i) the Transactions and (ii) Permitted Intercompany Activities.
Appears in 4 contracts
Sources: Credit Agreement (PF2 SpinCo, Inc.), Credit Agreement (PF2 SpinCo LLC), Credit Agreement (Change Healthcare Inc.)
Fundamental Changes. MergeNeither the Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than Section 7.02(e)) or Section 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 7.02 and 7.037.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to preserves the enforceability of this Agreement, the applicable Loan Guaranty and the Collateral Documents against and the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefromtherefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except Section 6.11 to the extent such merger is an Investment permitted under Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section Section 7.05; and
(g) the Borrower and its Subsidiaries may consummate Permitted Intercompany Activities.
Appears in 4 contracts
Sources: Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware)
Fundamental Changes. Merge(a) The Borrower will not, dissolvenor will it permit any Restricted Subsidiary to, liquidate, merge into or consolidate or amalgamate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all amalgamate or substantially all of its assets (whether now owned consolidate with it, or hereafter acquired) to liquidate or in favor of any Persondissolve, except that:
(ai) any Restricted Subsidiary may merge with into or amalgamate or consolidate with, or liquidate or dissolve into (iA) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (iiB) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with merging, amalgamating with, or liquidating or dissolving into, another Restricted Subsidiary, a Loan Party shall be Subsidiary either (1) the continuing or surviving Person and shall be a Subsidiary Loan Party or (B2) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party may merge or consolidate with or into any other by such surviving Restricted Subsidiary that is not a Loan Party and permitted under Section 6.04;
(ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(ciii) any Restricted Subsidiary may Dispose make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then either (iA) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or Loan Party, (iiB) to the extent constituting an Investment, such Investment must be a permitted an Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party permitted by Section 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is permitted under Section 6.05 and is for Fair Market Value and any promissory note or other non-cash consideration received in accordance with Sections 7.02 and 7.03, respectivelyrespect thereof is an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;
(div) so long as no Default exists or would result therefrom, the Borrower may merge with merge, amalgamate or consolidate with, or liquidate or dissolve into, any other Person; provided that (iA) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia States or any territory thereof, political subdivision thereof (B2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (C3) each GuarantorLoan Party other than the Borrower, unless it is the other party to such merger or merger, amalgamation, consolidation, liquidation or dissolution shall have by a supplement reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Guaranty confirmed Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F4) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that (x) if such Person is not a Loan Party, no Event of Default exists after giving effect to such merger, amalgamation, consolidation, liquidation or dissolution and (y) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided, further, that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act;
(ev) so long as no Default exists or would result therefrom, [reserved];
(vi) any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.026.04; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its the Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person Sections 5.11 and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.025.12;
(fvii) the Borrower and the Restricted Subsidiaries may consummate the MergerTransactions; and
(gviii) so long as no Default exists or would result therefrom, any Restricted Subsidiary may effect a merger, dissolution, liquidation, liquidation consolidation or Disposition, the purpose of which is amalgamation to effect a Disposition permitted pursuant to Section 7.056.05.
Appears in 4 contracts
Sources: Amendment No. 4 to Abl Credit Agreement (Chewy, Inc.), Amendment No. 3 (Chewy, Inc.), Abl Credit Agreement (Chewy, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except thatPerson except:
(a) (x) any Restricted Domestic Subsidiary of the Borrower may merge be merged, consolidated or liquidated with or into a Loan Party (so long as (i) in the case of any such merger, consolidation or liquidation involving the Borrower, the Borrower (including a merger, is the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (yii) such merger does not result in the Borrower ceasing to be incorporated under the Laws case of the United Statesany such other merger, any state thereof consolidation or the District of Columbialiquidation, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, the surviving Person or such surviving Person becomes a Loan Party shall be the continuing or surviving Person and concurrently therewith), (By) no any Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary of the Borrower that is not a Loan Party may merge be merged, consolidated or consolidate liquidated with or into any other Domestic Subsidiary of the Borrower that is not a Loan Party Party, and (z) any Foreign Subsidiary of the Borrower may be merged, amalgamated, consolidated or liquidated with or into (i) any other Foreign Subsidiary of the Borrower (in each case so long as any security interests granted to the Administrative Agent for the benefit of the Secured Parties in the assets (and Equity Interests) of any such Person subject to any such transaction shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, amalgamation, consolidation or liquidation) and all actions required to maintain said perfected status have been taken or (ii) any Loan Party (so long as such Loan Party is the surviving Person);
(b) Any non-operating Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower with no material assets and its Subsidiaries and if not materially disadvantageous to the Lendersno material liabilities may wind up, liquidate or dissolve;
(c) any Restricted Subsidiary Dispositions may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) made to the extent constituting an Investment, such Investment must be a permitted Investment in by Section 7.05 (including any mergers or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order consolidations to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the MergerDispositions); and
(gi) so long as no Default exists Any merger or would result therefromconsolidation of an Acquired Entity or Business in accordance with the terms of the definition thereof pursuant to a Permitted Acquisition, a merger, dissolution, liquidation, consolidation and (ii) Investments may be made to the extent permitted by Section 7.03 (including any mergers or Disposition, the purpose of which is consolidations to effect a Disposition permitted pursuant to Section 7.05such Investments).
Appears in 4 contracts
Sources: Refinancing Amendment to Credit Agreement (Ciena Corp), Refinancing Amendment to Credit Agreement (Ciena Corp), Incremental Joinder and Amendment Agreement (Ciena Corp)
Fundamental Changes. Merge(a) No Loan Party will, dissolvenor will it permit any of its Restricted Subsidiaries to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or liquidate or dissolve, including by means of (whether in one a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of under any Personsimilar law, except that:
, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would arise therefrom, (ai) any Restricted Subsidiary may merge with liquidate, dissolve, consolidate, or merge, including by means of a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law into a Loan Party in a transaction in which a Loan Party is the surviving corporation (i) or, in the Borrower (including case of a merger“plan of division” or comparable transaction, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower surviving Person, or any division or series thereof, shall be a Restricted Subsidiary and, solely to the continuing or surviving Person and (y) extent required under Section 5.12 after giving effect to such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United Statestransaction, any state thereof or the District of Columbiasuch Person, or such division or series thereof, shall be or become a Loan Party within the period required by Section 5.12), (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party may merge liquidate, dissolve, consolidate, or consolidate with merge, including by means of a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law, into any other Restricted Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is or, in the best interests case of a “plan of division” or comparable transaction, the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) surviving Person, or any division or series thereof, shall be a Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) solely to the extent constituting an Investmentrequired under Section 5.12 after giving effect to such transaction, such Investment must Person, or such division or series thereof, shall be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not become a Loan Party in accordance with Sections 7.02 and 7.03within the period required by Section 5.12), respectively;
(diii) so long as no Default exists or would result therefrom, the Borrower any Loan Party may merge with or into any other Person; provided that Loan Party, (iiv) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed Loan Parties and their Restricted Subsidiaries may dispose of Capital Stock of their respective Restricted Subsidiaries in a transaction permitted by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this AgreementSection 6.05, and (Fv) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary Permitted Acquisitions and other assumptions Permitted Investments and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment transactions permitted pursuant to Section 7.02; provided that 6.05 and Section 6.04 may be consummated in the form of a merger or consolidation.
(ib) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a No Loan Party is merging with will engage, to any material extent, in any business other Person, a than businesses of the type conducted by such Loan Party shall be on the continuing date of execution of this Agreement and businesses reasonably related thereto and those supportive, complementary, synergistic or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05ancillary thereto.
Appears in 4 contracts
Sources: Credit Agreement (Burlington Stores, Inc.), Credit Agreement (Burlington Stores, Inc.), Credit Agreement (Burlington Stores, Inc.)
Fundamental Changes. MergeNone of the Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate (including by division) with or into another Person, consummate a Division as the Dividing Person or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson including by allocation of any assets to a series of a limited liability company, except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated a limited partnership, corporation or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Subsidiaries and if is not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Section 7.2 (other than Section 7.2(e)) or Section 7.5 (other than Section 7.5(e)) or, in the case of any such business, discontinued, shall be transferred to or otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Subsidiary Guarantor will remain a Subsidiary Guarantor unless such Subsidiary Guarantor is otherwise permitted to cease being a Subsidiary Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Subsidiary Guarantor, then (i) the transferee must either be a Subsidiary Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 7.2 (other than Section 7.2(e)) and 7.037.3, respectively;; and
(d) so long as no Event of Default exists or would immediately result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A1) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B2) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C3) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D4) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E5) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F6) the Borrower shall have delivered to the Administrative Agent (w) an officer’s officers’ certificate signed by a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to preserves the enforceability of this Agreement, the applicable Loan Guaranty and the Collateral Documents against and the perfection of the Liens under the Collateral Documents, (x) if the Successor BorrowerCompany qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification by the Successor Company to any Lender that has requested such certification and with such customary (y) all documentation and other assumptions information about the Successor Company under applicable “know your customer” and qualifications as may be appropriate)anti-money-laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;; and
(e) so long as no Event of Default exists or would immediately result therefromtherefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.027.2; provided that (i) if the merging Restricted Subsidiary in such a transaction is a Subsidiary Guarantor, then the continuing or surviving Person must be a Guarantor or the Borrower or (ii) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 5.11 to the extent such merger is an Investment permitted under Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(f) [reserved];
(g) the Borrower and the its Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.5;
(h) the Borrower and its Subsidiaries may consummate Permitted Intercompany Activities and the WBR Specified Transaction; and
(i) any Restricted Subsidiary that is a limited liability company may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Restricted Subsidiaries at such time, or, with respect to assets not so held by one or more Restricted Subsidiaries, such Division, in the aggregate, would not otherwise result in a Disposition or sale of assets that is not permitted under Section 7.5; provided that, notwithstanding anything to the contrary in this Agreement, any Subsidiary which is a Division Successor resulting from a Division of assets of a Domestic Subsidiary that is not an Excluded Subsidiary may not be deemed to be an Excluded Subsidiary at the time of or in connection with the applicable Division.
Appears in 4 contracts
Sources: Revolving Credit Agreement (WaterBridge Infrastructure LLC), Revolving Credit Agreement (WaterBridge Infrastructure LLC), Revolving Credit Agreement (WaterBridge Infrastructure LLC)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary of the Parent Borrower (i) may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Parent Borrower; provided that (x) the a Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United StatesPerson, any state thereof or the District of Columbia, or (ii) may merge with or into any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted SubsidiarySubsidiary that is not a Loan Party, a such Loan Party shall be the continuing or surviving Person and or (Biii) no Domestic Subsidiary may merge with and be converted into a Foreign Subsidiarylimited liability company or limited partnership; provided that if the Subsidiary is a Loan Party, the limited liability company or limited partnership shall be organized under the laws of the United States of America or any State thereof;
(ib) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Borrower or, except in the Borrower or case of ABL Priority Collateral, to another Restricted Subsidiary; provided Loan Party;
(c) any Subsidiary that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party may dispose of all or substantially all its assets (including any Disposition that is in accordance with Sections 7.02 and 7.03, respectivelythe nature of a liquidation) to the Parent Borrower or any Subsidiary;
(d) so long as no Default exists or would result therefromin connection with any acquisition permitted under Section 7.03, the any Subsidiary of a Borrower may merge into or consolidate with any other PersonPerson or permit any other Person to merge into or consolidate with it; provided that (i) the Borrower Person surviving such merger shall be the continuing or surviving corporation or a wholly-owned Subsidiary of a Borrower and (ii) if in the Person formed by or surviving case of any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which any Loan Party (other than the Borrower Borrowers) is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agentparty, (C) each Guarantor, unless it such Loan Party is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreementsurviving Person;
(e) so long as no Default exists has occurred and is continuing or would result therefrom, each of the Borrowers and any Restricted Subsidiary of their respective Subsidiaries may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided, however, that in order to each case, immediately after giving effect an Investment permitted pursuant to Section 7.02; provided that thereto (i) in the continuing or case of any such merger to which a Borrower is a party, a Borrower is the surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, corporation and (ii) when in the case of any Restricted Subsidiary that such merger to which any Loan Party (other than a Borrower) is a party, such Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02corporation;
(f) any Disposition permitted by Section 7.05 may be structured as a sale of all or substantially all of the Borrower and the Restricted Subsidiaries may consummate the MergerEquity Interests of a Subsidiary; and
(g) so long as any Subsidiary which has no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is assets to effect a Disposition permitted pursuant distribute to Section 7.05its equityholders may be dissolved.
Appears in 4 contracts
Sources: Credit Agreement (Leslie's, Inc.), Credit Agreement (Leslie's, Inc.), Credit Agreement (Leslie's, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, liquidate or consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, (a) the Borrower may merge or consolidate with any other Person; of its Subsidiaries provided that (i) the Borrower shall be is the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, (b) any Subsidiary may merge or consolidate with any other Subsidiary provided that, except in the “Successor Borrower”)case of a Permitted Integration Transaction, (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other if a Loan Documents to which the Borrower Party is a party pursuant to such transaction, the continuing or surviving Person is a supplement hereto or thereto in form reasonably satisfactory to the Administrative AgentLoan Party, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (Fc) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; connection with a Permitted Acquisition provided that (i) if the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that Borrower is a Loan Party party to such transaction, the Borrower is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iiiii) no Domestic if a Loan Party is a party to such transaction, such Loan Party is the surviving Person, (d) any Subsidiary may merge with and into any other Person that is not organized under a Guarantor (other than Castlewilder) may dissolve, liquidate or wind up its affairs at any time provided that (i) such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect and (ii) the Laws residual assets of the United States, any state thereof or the District of Columbia except such Subsidiary shall be transferred to the extent parent of such merger Subsidiary and (e) any Subsidiary that is an Investment permitted under Section 7.02;
a Guarantor may dissolve, liquidate or wind up its affairs provided that (fi) such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect and (ii) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, residual assets of such Subsidiary shall be transferred to a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Loan Party.
Appears in 4 contracts
Sources: Credit Agreement (Cadence Design Systems Inc), Loan Agreement (Cadence Design Systems Inc), Loan Agreement (Cadence Design Systems Inc)
Fundamental Changes. Merge, divide, dissolve, liquidate, consolidate with or into another Person, (or Dispose agree to do any of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Personthe foregoing), except that, so long as no Default or Event of Default shall have occurred and be continuing prior to or immediately after giving effect to any action described below or would result therefrom:
(a) any Restricted Subsidiary which is not a Loan Party may merge with (i) the Borrower (including a mergerLoan Party, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower Loan Party shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbiasurviving Person shall join as a Loan Party in accordance with Section 6.12, or (ii) any one or more other Restricted Subsidiaries; Subsidiaries which are not Loan Parties, provided that (A) when any Restricted wholly-owned Subsidiary that is a Loan Party is merging with another Restricted SubsidiarySubsidiary that is not wholly-owned, a Loan Party the wholly-owned Subsidiary shall be the continuing or surviving Person and Person;
(Bb) no Domestic any Subsidiary which is a Loan Party may merge into any Subsidiary which is a Loan Party or into the Borrower, provided that in any merger involving the Borrower, the Borrower shall be the continuing or surviving Person;
(c) in connection with a Permitted Acquisition, any Subsidiary of a Loan Party may merge with or into or consolidate with any other Person or permit any other Person to merge with or into or consolidate with it; provided that the Person surviving such merger shall be a wholly-owned Subsidiary of a Loan Party and into such Person shall become a Foreign SubsidiaryLoan Party in accordance with the provisions of Section 6.12 hereof;
(id) any Subsidiary CFC that is not a Loan Party may merge or consolidate with or into any other Subsidiary CFC that is not a Loan Party and Party; and
(iie) any Subsidiary (other than Borrower) may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation is in the best interests of the Borrower and its Subsidiaries and if would not materially disadvantageous have a Material Adverse Effect; provided that, prior to the Lenders;
(c) any Restricted such liquidation or dissolution, such Subsidiary may Dispose of all or substantially shall transfer all of its assets (upon voluntary liquidation or otherwise) of the type included in the Borrowing Base to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Party.
Appears in 4 contracts
Sources: Credit Agreement (Five Below, Inc), Credit Agreement (Five Below, Inc), Credit Agreement (Five Below, Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower Company ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form if the Borrower Holdings determines in good faith that such action is in the best interests of the Borrower Holdings and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorGuarantor or the Borrower, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower Company may merge with any other Person; provided that (i) the Borrower Company shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower Company (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower Company under this Agreement and the other Loan Documents to which the Borrower Company is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement, Agreement and (F) the Borrower Company shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower Company under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower Company and the Restricted Subsidiaries may consummate the Merger; and;
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(h) so long as no Default exists or would result therefrom (including any Change of Control), Holdings (and any Successor Holding Company, as defined below) may merge with or be liquidated into any direct parent company holding 100% of the outstanding Equity Interests of Holdings; provided that (A) the Person formed by or surviving any such merger or consolidation (if not Holdings) or acquiring the assets of Holdings in any such liquidation (any such Person, the “Successor Holding Company”) shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof and shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party (including the Holdings Guaranty and all Collateral Documents to which Holdings is a party) pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (B) after giving effect to any such merger, consolidation or liquidation, Holdings or the Successor Holding Company, as the case may be, shall directly own 100% of the outstanding Equity Interests of the Company, which shall continue to be pledged to secure the Obligations under the Collateral Documents and (C) the Company shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of outside counsel, each stating that such merger, consolidation or liquidation and any such supplements to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Holding Company will succeed to, and be substituted for, Holdings under this Agreement.
Appears in 4 contracts
Sources: Credit Agreement (Sungard Data Systems Inc), Credit Agreement (Sungard Capital Corp Ii), Credit Agreement (Sungard Capital Corp Ii)
Fundamental Changes. MergeNeither the Borrower nor any of the Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Original Transactions), except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdictionjurisdiction in the United States); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another Restricted a Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefromtherefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment permitted under Section 7.02;
(f) required pursuant to the Borrower Collateral and the Restricted Subsidiaries may consummate the MergerGuarantee Requirement; and
(gf) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 4 contracts
Sources: Credit Agreement (Summit Materials, LLC), Credit Agreement (Summit Materials, Inc.), Credit Agreement (Summit Materials, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge or consolidate with or into (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower under the Loan Documents and (y) such merger or consolidation does not result in the Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia, Columbia or Canada or any province thereof or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Non-Loan Party is merging with another Restricted Subsidiarya Loan Party, a Loan Party shall be the continuing or surviving Person and or the continuing or surviving Person shall become a Loan Party or, to the extent constituting an Investment, such Investment must be permitted by Section 7.02 (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiaryother than Section 7.02(e));
(b) (i) any Subsidiary that merger the sole purpose of which is not a to reincorporate, reorganize or continue any Non-Loan Party may merge or consolidate in another jurisdiction, subject to compliance with or into any other Subsidiary that is not a Loan Party and the requirements of Section 6.12, (ii) any Restricted Subsidiary may liquidate liquidate, dissolve or dissolve wind-up or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the LendersLenders and (iii) the Borrower or any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect a Permitted Acquisition or other Investment permitted by Section 7.02; provided that the surviving entity shall be subject to the requirements of Section 6.12 (to the extent applicable); provided, further, that if any of the transactions contemplated in this clause (b) involve the Borrower, the provisions of Section 7.04(d) applicable to the Borrower shall be satisfied;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation liquidation, dissolution, wind-up or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, Investment in such Investment transferee as a result of such Disposition must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections Section 7.02 and 7.03, respectively(other than Section 7.02(e)) or such Disposition is permitted by Section 7.05 (other than Section 7.05(e));
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge (i) merge, amalgamate or consolidate with or into any other Person; provided that (ix) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by continuing or surviving any Person shall expressly assume the obligations of the Borrower under the Loan Documents in a manner reasonably acceptable to the Administrative Agent (including with respect to the satisfaction of customary PATRIOT Act requirements) and (y) such merger merger, amalgamation or consolidation is does not result in the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall ceasing to be an entity organized or existing under the laws Laws of the United States, any state thereof, the District of Columbia or any territory thereof, or Canada or any province thereof, or (Bii) the Successor Borrower shall expressly assume all the obligations of change its legal form if the Borrower under this Agreement determines that such action is in its best interests and the other Loan Documents to which the Borrower is makes such change in a party pursuant to a supplement hereto or thereto in form manner reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered acceptable to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered including with respect to the Borrower on the Closing Date, including as to the enforceability continued perfection of the applicable Loan Documents against the Successor Borrower, Liens and with such satisfaction of customary and other assumptions and qualifications as may be appropriatePATRIOT Act requirements); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, the First Amendment Transactions may be consummated;
(f) any Restricted Subsidiary may merge merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that 7.02 (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of other than Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.027.02(e));
(fg) the Borrower and the Restricted Subsidiaries may consummate the Merger[reserved]; and
(gh) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 (other than Section 7.05(e)).
Appears in 4 contracts
Sources: Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Inc.)
Fundamental Changes. MergeNeither the Lead Borrower nor any of its Restricted Subsidiaries shall merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary of the Lead Borrower (other than the Co-Borrower) may merge merge, amalgamate or consolidate with (i) the Lead Borrower (including a merger, the purpose of which is to reorganize the Lead Borrower into a new jurisdiction); provided that (x) the Lead Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted SubsidiariesSubsidiaries of the Lead Borrower (other than the Co-Borrower); provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and unless the resulting Investment made in connection with a Loan Party merging with a Non-Loan Party shall otherwise be a Restricted Investment permitted by Section 7.06 (Bother than Section 7.06(d)) no Domestic Subsidiary may merge with and into or a Foreign SubsidiaryPermitted Investment;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Lead Borrower determines in good faith that such action is in the best interests interest of the Lead Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary (other than the Co-Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Lead Borrower or to another Restricted SubsidiarySubsidiary (other than the Co-Borrower); provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if or the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Lead Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelypermitted by Section 7.06 (other than Section 7.06(d)) or a Permitted Investment;
(d) so long as no Default exists or would result therefrom, the Borrower any Restricted Subsidiary may merge or amalgamate with any other PersonPerson in order to effect a Restricted Investment permitted pursuant to Section 7.06 (other than Section 7.06(d)) or a Permitted Investment; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized a Restricted Subsidiary or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Lead Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary the Lead Borrower may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02Person; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party Lead Borrower shall be the continuing or surviving Person corporation, and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws Lead Borrower shall have delivered to the Administrative Agent an Officer’s Certificate of the United States, any state thereof or the District of Columbia except to the extent Lead Borrower stating that such merger is an Investment permitted under Section 7.02or consolidation complies with this Agreement;
(f) the Lead Borrower and the Restricted Subsidiaries may consummate the Merger; andTransactions;
(g) so long as no Default exists or would result therefrom, any Restricted Subsidiary (other than the Co-Borrower) may effect a merger, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(h) the Luxembourg Loan Parties may undertake a Permitted Relocation.
Appears in 4 contracts
Sources: Credit Agreement (Trinseo PLC), Credit Agreement (Trinseo PLC), Credit Agreement (Trinseo PLC)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge or amalgamate with (i) the Parent Borrower (including a merger, merger or amalgamation the purpose of which is to reorganize the Parent Borrower into in a new jurisdiction); province within Canada or the conversion from one form or legal entity into another) (provided that (x) the Borrower resulting entity shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing succeed as a matter of law to be incorporated under the Laws all of the United States, any state thereof or Obligations of the District of ColumbiaParent Borrower), or (ii) any one or more other Restricted Subsidiaries; Subsidiaries (provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, a Loan Party shall be the a continuing or surviving Person, as applicable, or the resulting entity shall succeed as a matter of law to all of the Obligations of such Loan Party; provided, further, that the Subsidiary Borrower shall not be merged or amalgamated with any Person and unless the surviving Person is the Subsidiary Borrower or a Restricted Subsidiary (B) no Domestic Subsidiary may merge with and into other than a Foreign Subsidiary) that is a Loan Party that becomes the Subsidiary Borrower pursuant to customary documentation) and (iii) in order to consummate a Permitted Tax Restructuring;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) (A) any Restricted Subsidiary may liquidate or liquidate, dissolve or wind up, or (B) any Restricted Subsidiary may change its legal form form, in each case, if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders and (iii) either Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Parent Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary (other than the Subsidiary Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then either (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections Section 7.02 and Section 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the each Borrower may merge or amalgamate with any other Person; provided that (i) the such Borrower shall be the a continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreementcorporation;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.116.10; provided, (ii) when that the Subsidiary Borrower shall not be merged or amalgamated with any Person unless the surviving Person is the Subsidiary Borrower or a Restricted Subsidiary (other than a Foreign Subsidiary) that is a Loan Party is merging with any other Person, a Loan Party shall be that becomes the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except Borrower pursuant to the extent such merger is an Investment permitted under Section 7.02customary documentation;
(f) the Borrower and the Restricted Subsidiaries Acquisition may consummate the Mergerbe consummated; and
(g) so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected.
Appears in 4 contracts
Sources: Credit Agreement (Restaurant Brands International Limited Partnership), Credit Agreement (Burger King Worldwide, Inc.), Credit Agreement (Tim Hortons Inc.)
Fundamental Changes. Merge(a) No Credit Party will, dissolvenor will it permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all any of its assets assets, or any of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) to ), or in favor of any Personliquidate or dissolve, except that:
(a) any Restricted Subsidiary may merge with , if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing (i) any Subsidiary of the Borrower (including a mergermay liquidate, the purpose of which is to reorganize dissolve, merge or consolidate into the Borrower into in a new jurisdiction)transaction in which the Borrower is the surviving corporation; provided that (x) the Borrower any merger consideration payable to minority shareholders of any such Subsidiary in connection with any such transaction shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing independently justified as an investment pursuant to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or Section 11.04(viii); (ii) (1) any one Subsidiary Guarantor may liquidate, dissolve, merge or more other Restricted Subsidiaries; provided that (A) when consolidate into any Restricted Subsidiary that Guarantor in a transaction in which the surviving entity is a Loan Party is merging with another Restricted SubsidiarySubsidiary Guarantor, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i2) any Subsidiary that is not a Loan Party Subsidiary Guarantor may liquidate, dissolve, merge or consolidate with into any Subsidiary Guarantor in a transaction in which the surviving entity is a Subsidiary Guarantor and (3) any Subsidiary that is not a Subsidiary Guarantor may liquidate, dissolve, merge or consolidate into any other Subsidiary that is not a Loan Subsidiary Guarantor; (iii) any Credit Party or any Subsidiary may sell, transfer, lease or otherwise dispose of (1) its assets to any Credit Party (other than Holdings), (2) Inventory and precious metals to be recovered from spent catalysts in the ordinary course of business, (3) assets constituting property, plant and equipment that are uneconomical, obsolete, worn out or no longer used or useful in its business or constitute surplus and which are disposed of in the ordinary course of business, (4) other assets (other than any disposition of property, plant and equipment as part of a Permitted Sale and Leaseback Transaction) having a market value not to exceed either (x) 5% of Consolidated Total Assets during any Fiscal Year or (y) 15% of Consolidated Total Assets in the aggregate for all periods after the Effective Date, with each determination pursuant to preceding clause (x) or (y) to be made on the date of each sale, transfer, lease or other disposition of assets pursuant to this clause (4) based upon Consolidated Total Assets as shown at the last day of the most recently ended Fiscal Quarter for which financial statements have been (or were required to be) furnished to the Administrative Agent pursuant to Section 10.01(a) or (b) (or prior to any such delivery, as shown on the December 31, 2009 consolidated balance sheet of Holdings delivered pursuant to Section 9.04(a)), as the case may be; provided that (x) no violation of this clause (4) shall occur solely as a result of any reduction in Consolidated Total Assets if at the time the respective disposition of assets occurred such disposition was permitted within the limitations established by this clause (4), (y) each sale, transfer, lease or other disposition of assets pursuant to this clause (4) shall be at fair market value and for consideration at least 75% of which (in the good faith determination of the Borrower) constitutes cash, except that during any Fiscal Year asset dispositions in an aggregate amount not exceeding $100,000,000 may be made at fair market value but without being subject to the cash consideration requirements set forth above, and (ii5) sales, transfers, leases or other dispositions of assets to one or more Foreign Subsidiaries or Excluded Subsidiaries so long as the aggregate fair market value of all assets so transferred (in the case of goods, net of any cash payments therefor actually received by the respective transferor) pursuant to this clause (5) in any Fiscal Year does not exceed $20,000,000; (iv) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve or change its legal form if dissolve; (v) the Transaction shall be permitted; (vi) as part of any Acquisition permitted under Section 11.04(viii), any Subsidiary of the Borrower determines may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it in good faith a transaction in which the survivor is a Wholly-Owned Subsidiary of the Borrower; provided that such action is (x) in the best interests case of any such merger or consolidation to which a Subsidiary Guarantor is a party, the surviving entity in such merger or consolidation shall be (after giving effect to such transaction) a Subsidiary Guarantor and (y) the aggregate amount of merger consideration shall be justified as an investment pursuant to Section 11.04(viii); (vii) bona fide sales, transfers and other dispositions in the ordinary course of (A) Permitted Investments, and (B) Investments permitted under clauses (vii), (xii) and (xiii) of Section 11.04; (viii) Holdings, the Borrower and each Subsidiary may make payments and other transactions permitted by Section 11.06; (ix) Holdings, the Borrower and each Subsidiary may lease, sublease, license or sublicense any property, plant and equipment or intellectual property in the ordinary course of business, including without limitation the lease of vacant land for farming or for the exploration and production of oil, gas, sulphur and other minerals; (x) Holdings, the Borrower and each Subsidiary may sell or otherwise dispose of delinquent Accounts in the ordinary course of business for purposes of collection only (and not for the purpose of any bulk sale, securitization or financing transaction); (xi) Holdings, the Borrower and each Subsidiary may surrender or waive contractual rights or settle, release or surrender any contract, tort or other litigation claims in the ordinary course of business; (xii) Holdings, the Borrower and each Subsidiary may grant Liens permitted by Section 11.02 of this Agreement; (xiii) Holdings and its Subsidiaries may sell, transfer or otherwise dispose of property, plant and equipment in a Permitted Sale and Leaseback Transaction; (xiv) Holdings and its Subsidiaries may in the ordinary course of business abandon or dispose of intellectual property or other proprietary rights of the Borrower or any Subsidiary that are, in the reasonable business judgment of the Borrower or any Subsidiary, no longer practicable to maintain or useful in the conduct of the business of the Borrower or any Subsidiary; (xv) any Subsidiary that is not a Credit Party may sell, transfer, lease or otherwise dispose of any of its assets to any other Subsidiary that is not a Credit Party; and (xvi) CFL and its subsidiaries may receive from, or transfer to, the Borrower and its Subsidiaries spare parts, equipment or goods in the ordinary course of business consistent with past practices and, in connection therewith, may incur loans deemed to arise as a result of such transfers to them, and may be a lender of loans to the Borrower and its Subsidiaries which arise from time to time as a result of transfers of such assets by them to the Borrower and its Subsidiaries; provided that all Indebtedness of the Borrower and its Subsidiaries arising as a result of such transfers is incurred under, and if not materially disadvantageous meets the requirements of, Section 11.01(vi)(y). For purposes of this Section 11.03 and the definition of Asset Sale, any issuance of Equity Interests by a Subsidiary of Holdings (to a Person other than Holdings or a Wholly-Owned Subsidiary thereof) which, after giving effect thereto, increases the proportional holdings of such Person in such Subsidiary shall be deemed to be a sale of Equity Interests by Holdings or the respective Subsidiary which directly owns Equity Interests in such Subsidiary. In addition to the Lenders;
requirements contained above, no Credit Party will, nor will it permit any of its Subsidiaries to, sell the Equity Interests in any of its Subsidiaries unless the sale is otherwise permitted above in this Section 11.03 and, in the case of any such sale to any Persons other than Holdings or a Subsidiary, constitutes (cx) any Restricted Subsidiary may Dispose a sale or disposition of all Equity Interests owned by Holdings and its Subsidiaries in such Subsidiary or substantially all (y) a sale or disposition of its assets (upon voluntary liquidation or otherwise) Equity Interests in order to convert the Borrower or respective Subsidiary to another Restricted Subsidiarya Joint Venture; provided that if in the transferor in such a transaction is a Guarantor, then case of this clause (iy) the transferee must either aggregate fair market value of the Equity Interests of Holdings and its Subsidiaries in the respective Subsidiary being converted into a Joint Venture, immediately before the transaction described in this clause (y) net of any cash consideration actually received by any Credit Party (and not the Subsidiary being converted to a Joint Venture) at the time of, and in connection with, said conversion, shall be deemed an investment pursuant to Section 11.04(viii) and shall only be permitted if same is allowed in accordance with the Borrower requirements thereof. The Net Cash Proceeds of any sale or a Guarantor (anddisposition permitted pursuant to this Section 11.03 shall be applied as, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) and to the extent constituting an Investmentrequired by, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;Section 5.02.
(db) so long as no Default exists or would result therefromNo Credit Party will, nor will it permit any of its Subsidiaries to, engage in any business other than businesses of the type generally conducted by the Borrower may merge with any other Person; provided that (i) and its Subsidiaries on the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws date of the United States, any state thereof, the District execution of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto businesses reasonably related thereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger reasonable extensions or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05expansions thereof.
Appears in 4 contracts
Sources: Credit Agreement (CF Industries Holdings, Inc.), Bridge Loan Agreement (CF Industries Holdings, Inc.), Credit Agreement (CF Industries Holdings, Inc.)
Fundamental Changes. MergeThe Borrower will not, dissolveand will not permit any Restricted Subsidiary to, liquidate, merge into or consolidate or amalgamate with or into another any other Person, or Dispose of permit any other Person to merge into or consolidate with it, or liquidate or dissolve (whether including, in one transaction or in each case, pursuant to a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonDivision), except that:
(ai) any Restricted Subsidiary may merge merge, consolidate or amalgamate with (ix) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (x) the Borrower shall be the continuing or surviving Person and or (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging, consolidating or amalgamating with another Restricted Subsidiary either (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and shall be a Subsidiary Loan Party or (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party may merge or consolidate with or into any other by such surviving Restricted Subsidiary that is not a Loan Party and permitted under Section 6.04;
(ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form or undertake similar transactions if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(ciii) any Restricted Subsidiary may Dispose make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then either (iA) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or Loan Party, (iiB) to the extent constituting an Investment, such Investment must be a permitted an Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party permitted by Section 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for Fair Market Value and any promissory note or other non-cash consideration received in accordance with Sections 7.02 and 7.03, respectivelyrespect thereof is an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;
(div) so long as no Default exists or would result therefrom, the Borrower may merge merge, amalgamate or consolidate with any other Person; provided that (iA) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (C3) each GuarantorLoan Party other than the Borrower, unless it is the other party to such merger or consolidation, amalgamation or consolidation, shall have by a supplement reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Guaranty confirmed Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F4) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that (x) if such Person is not a Loan Party, no Event of Default exists after giving effect to such merger, amalgamation or consolidation and (y) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided, further, that the Borrower agrees to use commercially reasonable efforts to provide any documentation and other information about such Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act and the Beneficial Ownership Regulation;
(ev) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.026.04; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its the Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person Sections 5.11 and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger5.12; and
(gvi) so long as no Default exists or would result therefrom, any Restricted Subsidiary may effect a merger, dissolution, liquidation, liquidation consolidation or Disposition, the purpose of which is amalgamation to effect a Disposition permitted pursuant to Section 7.056.05.
Appears in 4 contracts
Sources: Credit Agreement (Vacasa, Inc.), Credit Agreement (Vacasa, Inc.), Credit Agreement (Vacasa, Inc.)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any other Restricted Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(aA) any other Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (iiB) any Restricted Subsidiary may merge with any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be Subsidiary (1) the continuing or surviving Person and shall be a Subsidiary Loan Party or (B2) no Domestic if the continuing or surviving Person is not a Subsidiary may merge with and into a Foreign SubsidiaryLoan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 6.04;
(iii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (iiB) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(ciii) any Restricted Subsidiary may Dispose make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (iA) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or Loan Party (iiother than Holdings), (B) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 Section 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair value and 7.03, respectivelyany promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04;
(div) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (iA) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, State thereof or the District of Columbia or any territory thereofColumbia, (B2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (C3) each GuarantorLoan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have by a supplement reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Guaranty confirmed Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F4) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement Agreement; provided further that (andy) if such Person is not a Loan Party, with respect no Default exists after giving effect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate merger or consolidation and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided further that the Borrower agrees to use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any the Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(ev) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.026.04; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that Sections 5.11 and 5.12 and if the other party to such transaction is not a Loan Party is merging with any other PersonParty, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except Default exists after giving effect to the extent such merger is an Investment permitted under Section 7.02transaction;
(fvi) the Borrower and the its Restricted Subsidiaries may consummate the MergerAcquisition; and
(gvii) so long as no Default exists or would result therefrom, any Restricted Subsidiary may effect a merger, dissolution, liquidation, liquidation consolidation or Disposition, the purpose of which is amalgamation to effect a Disposition permitted pursuant to Section 7.056.05; provided that if the other party to such transaction is not a Loan Party, no Default exists after giving effect to the transaction.
(b) The Borrower will not, and will not permit any Restricted Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Restricted Subsidiaries on the Effective Date and businesses reasonably related or ancillary thereto.
Appears in 4 contracts
Sources: First Lien Credit Agreement (NEP Group, Inc.), Second Lien Credit Agreement (NEP Group, Inc.), Second Lien Credit Agreement (NEP Group, Inc.)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (including, in each case, pursuant to a Delaware LLC Division), except that:
(a) any Restricted Subsidiary other than the Borrower may merge or amalgamate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; Subsidiaries (provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, a Loan Party shall be the a continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into Person, as applicable, or the resulting entity shall succeed as a Foreign Subsidiarymatter of law to all of the Obligations of such Loan Party);
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) (A) any Restricted Subsidiary may liquidate or liquidate, dissolve or wind up, and (B) any Restricted Subsidiary may change its legal form form, in each case, if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then either (ix) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (iiy) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections Section 7.02 and Section 7.03, respectively;
(d) other than during the Liquidity Testing Period and so long as no Event of Default exists or would result therefrom, the Borrower may merge or amalgamate with any other Person or, assign all of the obligations hereunder to another Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or in connection with any such assignment to another Person (any such PersonPerson under this clause (ii), the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) the Successor Company shall cause such amendments, supplements or other instruments to be executed, delivered, filed and recorded (and deliver a copy of same to the Administrative Agent and Collateral Agent) in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Collateral Agent on the Collateral owned by or transferred to the Successor Company, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the UCC of the relevant states, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (DE) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (EF) each mortgagor the Administrative Agent shall have received all documentation and other information about the Successor Company that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and (G) at the time of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, be in pro forma compliance with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Financial Covenant; provided, further, further that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.026.10;
(f) the Borrower and the Restricted Subsidiaries any Reorganization may consummate the Merger; andbe consummated;
(g) so long as no Event of Default exists or would result therefrom, a merger, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected (other than pursuant to Section 7.05(e)); and
(h) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, in each case, by and among the Borrower and/or its Restricted Subsidiaries, the purpose of which is to effect a Reorganization.
Appears in 4 contracts
Sources: Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Fundamental Changes. MergeThe Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person and Person, (y) such merger transaction does not result in the Borrower ceasing to be incorporated organized under the Laws laws of the United States, any state State thereof or the District of Columbia, Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any one or more other Restricted Subsidiaries; provided provided, in the case of this clause (ii), that (A) when any Restricted Subsidiary that is such transaction involves a Loan Party is merging with another Restricted SubsidiaryParty, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiaryexcept to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the LendersLenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or any territory thereofpriority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative AgentAgent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under this Agreementthe Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under this Agreementthe Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counselopinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, provided further, that if the foregoing are satisfiedsatisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (ix) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted under Section 7.02Investment;
(f) the Borrower and the any Restricted Subsidiaries Subsidiary may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, effect a merger, dissolution, liquidation, consolidation liquidation or Dispositionconsolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 3 contracts
Sources: Credit Agreement (Yellow Corp), Credit Agreement (Yellow Corp), Credit Agreement (YRC Worldwide Inc.)
Fundamental Changes. MergeThe Borrower shall not, nor shall it permit any of its Subsidiaries to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) each of the Borrower and any Restricted Subsidiary of its Subsidiaries may merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, in connection with an Investment permitted hereunder so long as (i) in the case of any such transaction to which the Borrower (including is a mergerparty, the purpose of which Borrower is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United StatesPerson, any state thereof or the District of Columbia, or (ii) in the case of any one or more other Restricted Subsidiaries; such transaction to which Forex Capital Markets is a party, Forex Capital Markets is the surviving Person, (iii) in the case of any such transaction to which any UK Regulated Entity is a party, such UK Regulated Entity is the surviving Person (provided that the UK Regulated Entities may merge or consolidate with one another, so long as one such UK Regulated Entity is the surviving Person), and (Aiv) when in the case of any Restricted Subsidiary that such transaction to which any Loan Party (other than the Borrower, Forex Capital Markets or any UK Regulated Entity) is a Loan Party is merging with another Restricted Subsidiaryparty, a such Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(ib) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in any such a transaction Disposition is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (andor become a Guarantor upon consummation of such transfer);
(c) any Subsidiary may be dissolved so long as, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investmentat such time, such Investment must be a permitted Investment in Subsidiary has no assets or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;operations; and
(d) so long as no Default exists or would result therefromOnline Courses, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such PersonLLC, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations a Delaware limited liability company and a partially-owned Subsidiary of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor as of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as may be dissolved or liquidated, and the assets and proceeds distributed to the enforceability owners of the applicable Loan Documents against the Successor BorrowerEquity Interests therein as agreed among them, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each aggregate amount of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person such assets and (iii) no Domestic Subsidiary may merge with and into any other Person that is proceeds does not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05exceed $1,000,000.
Appears in 3 contracts
Sources: Credit Agreement (FXCM Inc.), Credit Agreement (FXCM Inc.), Credit Agreement (FXCM Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, Person or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) Divide any Loan Party to or in favor of any Persontheir Subsidiaries, except that, so long as no Default or Event of Default exists or would result therefrom:
(a) any Restricted Subsidiary of the Company may merge or consolidate with or liquidate or dissolve into a Loan Party; provided, that, (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person Person, (ii) a Borrower may not merge into the Company and (Biii) no Domestic in the case of any merger of a Borrower and a Subsidiary Guarantor, such Borrower shall be the continuing or surviving Person;
(b) in connection with a Permitted Acquisition, any Subsidiary of a Loan Party may merge with or into or consolidate with any other Person or permit any other Person to merge with or into or consolidate with it; provided, that, (i) the Person surviving such merger shall be a wholly-owned Subsidiary of a Loan Party and into (ii) in the case of any such merger to which any Loan Party is a Foreign Subsidiaryparty, such Loan Party is the surviving Person or the surviving Person becomes a Loan Party; provided, further that the Company shall be the surviving Person in the case of any merger with the Company;
(ic) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and Party; provided that, when any wholly-owned Subsidiary is merging with another Subsidiary that is not wholly-owned, the wholly-owned Subsidiary shall be the continuing or surviving Person; and
(iid) any Subsidiary Loan Party (other than the Company) may liquidate or dissolve or change its legal form liquidate if the Borrower Agent determines in good faith that such action liquidation or dissolution is in the best interests interest of the Borrower Loan Parties and its Subsidiaries and if is not materially disadvantageous to the Administrative Agent or the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if such Loan Party shall at or before the transferor in time of such a transaction is a Guarantordissolution or liquidation, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) transfer its assets to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03(or, respectively;
(d) so long as no Default exists or would result therefromif such Loan Party was a Borrower, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 3 contracts
Sources: Credit Agreement (Roadrunner Transportation Systems, Inc.), Credit Agreement (Roadrunner Transportation Systems, Inc.), Credit Agreement (Roadrunner Transportation Systems, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (including, in each case, pursuant to a Division; provided that the formation of any Subsidiary that is a Division Successor shall be deemed to constitute the acquisition of a Restricted Subsidiary for all purposes of this Section 9.4), except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and Person, (y) such merger or consolidation does not result in the Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person Columbia and (Bz) no Domestic Subsidiary may merge in the case of a merger or consolidation of Holdings with and into the Borrower, Holdings shall not be an obligor in respect of any Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a Foreign Subsidiaryparty pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is not a Loan Party and Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) through (iv) of this paragraph (b), that (A) no Event of Default shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 Section 9.2 (other than clause (e) thereof) and 7.03, respectivelymust be a permitted Disposition in accordance with Section 9.5;
(d) so long as no Default exists or Event of Default is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or Event of Default is continuing or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.029.2 (other than Section 9.2(e)); provided that (i) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11Sections 8.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person 8.12 and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger8.13; and
(gf) so long as no Default exists or Event of Default is continuing or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.059.5 (other than Section 9.5(e)).
Appears in 3 contracts
Sources: Credit Agreement (JOANN Inc.), Credit Agreement (JOANN Inc.), Credit Agreement (JOANN Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the a Borrower (including a merger, the purpose of which is to reorganize the such Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result jurisdiction in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, ); provided that such Borrower shall be the continuing or surviving Person or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging merging, amalgamating or consolidating with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and unless the Investment made in connection with such Restricted Subsidiary that is a Loan Party merging, amalgamating or consolidating with a Non-Loan Party shall otherwise be a Restricted Payment permitted by Section 7.06 (Bother than Section 7.06(b)(xviii)) no Domestic Subsidiary may merge with and into or a Foreign SubsidiaryPermitted Investment;
(ib) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Administrative Borrower determines in good faith that such action is in the best interests of the Borrower Borrowers and its the Restricted Subsidiaries and if is not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the a Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted Investment in by Section 7.06 (other than Section 7.06(b)(xviii)) or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyPermitted Investment;
(d) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Parent Borrower may merge merge, dissolve, liquidate or consolidate with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower or is a Person into which the Parent Borrower has been liquidated or dissolved (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger merger, dissolution, liquidation or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Parent Borrower’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger merger, dissolution, liquidation or consolidation, shall have by a supplement to reaffirmed that its obligations under the Security Agreement confirmed that its obligations thereunder and other applicable Collateral Documents shall apply to the Successor Parent Borrower’s 's obligations under this Agreementthe Loan Documents, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement[reserved], and (F) the Administrative Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, and customary legal opinions consistent with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions those delivered with respect to the Borrower on the Closing DateDate (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, including as change in fact or change to counsel’s form of opinion reasonably satisfactory to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) [reserved];
(f) so long as no Event of Default exists has occurred and is continuing or would result therefromtherefrom (solely in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.027.06 (other than Section 7.06(b)(xviii)) or a Permitted Investment; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its other Restricted SubsidiariesSubsidiary, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(fg) the Borrower Loan Parties and the Restricted their Subsidiaries may consummate the Mergerany Permitted Reorganization; and
(gh) so long as no Event of Default exists has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 (other than Section 7.05(e)) may be consummated. Notwithstanding the above, in the case of any merger, amalgamation or consolidation where the continuing or surviving Person is a Loan Party or any liquidation into a Loan Party, in each case, in accordance with this Section 7.04, any security interests granted to the Administrative Agent for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been or will promptly be taken, in each case, as required by Sections 6.11 and 6.13.
Appears in 3 contracts
Sources: First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the sole purpose of which is to reorganize the Borrower into a new jurisdiction); provided provided, that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary of the Borrower may liquidate or dissolve or change its legal form (subject, (x) in the case of any change of legal form, to any such Restricted Subsidiary that is a Guarantor remaining a Guarantor and (y) in the case of a liquidation or distribution of a Loan Party, the assets of such Loan Party are transferred to a Loan Party and the security interests of the Collateral Agent in the assets so transferred remain perfected at least to the same extent that such security interests were perfected immediately prior thereto) if the Borrower Holdings determines in good faith that such action is in the best interests of the Borrower Holdings and its Subsidiaries and if such change is not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorGuarantor or the Borrower, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (F) immediately after giving effect to such merger or consolidation, the Successor Company and the Restricted Subsidiaries shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.11, such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such merger or consolidation had been consummated as of the first day of the fiscal period covered thereby and evidenced by a certificate from the Chief Financial Officer of the Successor Company demonstrating such compliance calculation in reasonable detail, and (FG) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the MergerMerger and the other Transactions; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 3 contracts
Sources: Credit Agreement (Bloomin' Brands, Inc.), Credit Agreement (Cheeseburger-Ohio, Limited Partnership), Credit Agreement (Osi Restaurant Partners, LLC)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (including, in each case, pursuant to a Delaware LLC Division), except that:
(a) any Restricted Subsidiary other than a Borrower may merge or amalgamate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; Subsidiaries (provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, a Loan Party shall be the a continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into Person, as applicable, or the resulting entity shall succeed as a Foreign Subsidiarymatter of law to all of the Obligations of such Loan Party);
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) (A) any Restricted Subsidiary may liquidate or liquidate, dissolve or wind up, and (B) any Restricted Subsidiary may change its legal form form, in each case, if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders and (iii) a Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Parent Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then either (ix) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (iiy) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections Section 7.02 and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the each Borrower may merge or amalgamate with any other Person or assign all of the obligations hereunder to another Person; provided that (i) the such Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the such Borrower or in connection with any such assignment to another Person (any such PersonPerson under this clause (ii), the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) the Successor Company shall cause such amendments, supplements or other instruments to be executed, delivered, filed and recorded (and deliver a copy of same to the Administrative Agent and Collateral Agent) in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Collateral Agent on the Collateral owned by or transferred to the Successor Company, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the UCC of the relevant states, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (DE) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (EF) each mortgagor the Administrative Agent shall have received all documentation and other information about the Successor Company that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and (G) at the time of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, be in pro forma compliance with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Financial Covenant; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement;
(e) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.026.10;
(f) the Borrower and the Restricted Subsidiaries any Reorganization may consummate the Merger; andbe consummated;
(g) so long as no Event of Default exists or would result therefrom, a merger, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected (other than pursuant to Section 7.05(e)); and
(h) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, in each case, by and among the Parent Borrower and/or its Restricted Subsidiaries, the purpose of which is to effect a Reorganization.
Appears in 3 contracts
Sources: Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Abl Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Fundamental Changes. MergeNeither the Company nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (including, in each case, pursuant to a Division), except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower Company (including a merger, the purpose of which is to reorganize the Borrower Company into a new jurisdiction); provided that (x) the Borrower Company shall be the continuing or surviving Person and (y) such merger does not result in the Borrower Company ceasing to be incorporated a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or the Company or any Subsidiary may change its legal form (x) if the Borrower Company determines in good faith that such action is in the best interests interest of the Borrower Company and its Subsidiaries and if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than 7.02(e)) or 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if or the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Company or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;; and
(d) so long as no Default exists or would result therefrom, the Borrower Company may merge or consolidate with any other Person; provided that (i) the Borrower Company shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower Company (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower Company under this Agreement and the other Loan Documents to which the Borrower Company is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower Company shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to preserves the enforceability of this Agreement, the applicable Loan Guaranty and the Collateral Documents against and the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower Company under this Agreement;; and
(e) so long as no Default exists or would result therefromtherefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Company, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment permitted under Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) the Company and its Subsidiaries may consummate Permitted Intercompany Activities, the Spin-Off Transaction and related transactions.
Appears in 3 contracts
Sources: Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party (other than the Borrower) is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge unless the resulting Investment made in connection with and into a Foreign SubsidiaryLoan Party merging with a Non-Loan Party shall otherwise be a Restricted Investment permitted by Section 7.06 or a Permitted Investment;
(i) any Subsidiary that is not a Non-Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Non-Loan Party and Party, (ii) any Subsidiary (other than the Borrower) may liquidate or dissolve and (iii) the Borrower or any Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, the Borrower will remain the Borrower and a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Investment permitted Investment in by Section 7.06 or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyPermitted Investment;
(d) so long as no Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Event of Default exists has occurred and is continuing or would result therefromtherefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.027.06 or a Permitted Investment; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary of the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment permitted under Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger, related transactions contemplated by the Merger Agreement (and documents related thereto) and the Transactions; and
(g) so long as no Event of Default exists has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 3 contracts
Sources: First Lien Credit Agreement (Portillo's Inc.), Second Lien Credit Agreement (Portillo's Inc.), First Lien Credit Agreement (Portillo's Inc.)
Fundamental Changes. Merge(a) The Borrower will not, dissolvenor will it permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or permit any other Person to merge into or consolidate with it, or otherwise Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets assets, or all or substantially all of the Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) to ), or in favor of any Personliquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(ai) any Restricted Subsidiary Person (other than the Borrower or any of its Subsidiaries) may merge or consolidate with the Borrower or any of its Subsidiaries; provided that any such merger or consolidation involving (iA) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not must result in the Borrower ceasing as the surviving entity and (B) a Subsidiary Guarantor that is a Domestic Subsidiary must result in such Subsidiary Guarantor as the surviving entity and (C) subject to be incorporated under clause (B) above, a Subsidiary Guarantor that is a Foreign Subsidiary must result in such Subsidiary Guarantor as the Laws of the United States, any state thereof or the District of Columbia, or surviving entity;
(ii) any one Subsidiary may merge into or more other Restricted Subsidiaries; consolidate with a Loan Party in a transaction in which the surviving entity is such Loan Party (provided that (A) when any Restricted such merger involving the Borrower must result in the Borrower as the surviving entity and any such merger involving a Subsidiary Guarantor that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiarymust result in such Subsidiary Guarantor as the surviving entity);
(iiii) any Subsidiary that is not a Loan Party may merge into or consolidate with another Subsidiary that is not a Loan Party;
(iv) the Borrower and its Subsidiaries may sell, transfer, lease or into otherwise dispose of any other Subsidiary that is not a Loan Party and (iiand, in connection with a liquidation, winding up or dissolution or otherwise, any Subsidiary that is not a Loan Party may sell, transfer, lease, license or otherwise dispose of any, all or substantially all of its assets) to another Subsidiary that is not a Loan Party;
(v) Dispositions permitted by Section 6.04;
(vi) any Subsidiary that is not a Loan Party may liquidate liquidate, wind up or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation, winding up or dissolution is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders;
(cvii) any Restricted Domestic Subsidiary may Dispose of all liquidate, wind up or substantially all of dissolve if its assets are transferred to a Domestic Loan Party or, if such Subsidiary is not a Subsidiary Guarantor, to any other Subsidiary; and
(upon voluntary liquidation viii) any Foreign Subsidiary may liquidate, wind up or otherwise) dissolve if its assets are transferred to the Borrower or a Loan Party or, if such Subsidiary is not a Subsidiary Guarantor, to another Restricted any other Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation involving a Person that is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party Wholly-Owned Subsidiary immediately prior to such merger or consolidation, consolidation shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, not be permitted unless it is also permitted by Section 6.05.
(b) The Borrower will not, nor will it permit any Subsidiary to, engage to any material extent in any business substantially different from businesses of the other party type conducted by the Borrower and its Subsidiaries (taken as a whole) on the Effective Date and businesses reasonably related, ancillary, similar, complementary or synergistic thereto or reasonable extensions, development or expansion thereof.
(c) The Borrower will not, nor will it permit any Subsidiary to, change its fiscal year from the basis in effect on the Effective Date; provided that, notwithstanding the foregoing, the Borrower may (and may permit its Subsidiaries to) change their fiscal year to contain four thirteen-week periods so long as the Borrower notifies the Administrative Agent no less than 30 days prior to such merger change (or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered shorter period as may be acceptable to the Administrative Agent an officer’s certificate in its sole discretion) and an opinion upon receipt of counselsuch notice, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
Administrative Agent will (gand are hereby authorized to) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is make any adjustments to effect a Disposition permitted pursuant this Agreement that are necessary and appropriate to Section 7.05reflect such changes in fiscal year.
Appears in 3 contracts
Sources: Credit Agreement (Pacira BioSciences, Inc.), Credit Agreement (Pacira BioSciences, Inc.), Credit Agreement (Pacira BioSciences, Inc.)
Fundamental Changes. MergeEnter into any merger, dissolveconsolidation or amalgamation, or liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation or dissolution), or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned property or hereafter acquired) to or in favor of any Personbusiness, except that:
(a) any Restricted Subsidiary may merge with (i) of Holdings that is not a Foreign Subsidiary of the Borrower may be merged or consolidated with or into the Borrower, as the case may be (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and corporation) or with or into U.S. Holdings or any Subsidiary Guarantor (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted a Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party Guarantor shall be the continuing or surviving Person corporation), (ii) any Foreign Subsidiary that is a Subsidiary Guarantor may be merged or consolidated with or into any other Foreign Subsidiary that is a Subsidiary Guarantor, and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(iiii) any Subsidiary Group Member that is not a Loan Party may merge be merged or consolidate consolidated with or into any other Subsidiary another Group Member that is not a Loan Party and Party.
(iib) (x) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary Loan Party may Dispose of all any or substantially all of its assets (i) to another Loan Party (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) pursuant to the extent constituting an Investment, such Investment must be a Disposition permitted Investment in or Indebtedness of a Restricted Subsidiary which by Section 9.5 and (y) any Group Member that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;may Dispose of any or all of its assets to (i) the Borrower or any other Group Member or (ii) pursuant to a Disposition permitted by Section 9.5.
(dc) so long any Investment of the Group Members expressly permitted by Section 9.7 may be structured as no Default exists a merger, consolidation or would result therefrom, the Borrower may merge with any other Person; amalgamation (provided that (ix) if the Borrower is a party to such merger, consolidation or amalgamation, the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (By) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower if a Subsidiary Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger merger, consolidation or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Personamalgamation, a Loan Party Subsidiary Guarantor shall be the continuing or surviving Person thereof and (iiiz) no Domestic Subsidiary may merge with and into any other Person if a Group Member that is not organized under a Loan Party is a party to such merger, consolidation or amalgamation (and the Laws Borrower is not a party thereto), a Group Member shall be the continuing or surviving Person thereof);
(d) any Group Member (other than the Borrower) may liquidate or dissolve if Holdings determines in good faith that such liquidation or dissolution is in the best interests of the United States, any state thereof or the District of Columbia except Holdings and its Subsidiaries and is not materially disadvantageous to the extent Lenders; provided that if U.S. Holdings or a Subsidiary Guarantor liquidates or dissolves in accordance with this Section 9.4(d), (i) all or substantially all of its assets shall be transferred to, or otherwise assumed by, the Borrower or, other than in the case of U.S. Holdings, another Subsidiary Guarantor and (ii) no Event of Default shall have occurred and be continuing at such merger is an Investment time;
(e) any merger, dissolution or liquidation not involving the Borrower or Holdings may be effected for the purposes of effecting a transaction permitted under by Section 7.029.5;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a any merger, dissolutionconsolidation, liquidationamalgamation, dissolution or liquidation to achieve the structure set forth in the Final Structure Schedule. Notwithstanding the foregoing, Holdings shall not and no Subsidiary Guarantor that is a Foreign Subsidiary shall enter into any merger, consolidation or Dispositionamalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its property or business if the purpose result of which is to effect a Disposition permitted pursuant to Section 7.05such merger, consolidation or amalgamation would result in such Subsidiary Guarantor becoming an Excluded Foreign Subsidiary.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Ancestry.com LLC), Credit and Guaranty Agreement (Anvilire), Credit and Guaranty Agreement (Anvilire)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger or consolidation does not result in the Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary of the Borrower that is not a Loan Party, (ii) any Subsidiary may merge or consolidate with or into any other Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iiiv) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the LendersLenders in any material respect; provided, in the case of clauses (ii) through (iv) of this paragraph (b), that (A) no Event of Default shall result therefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 Section 9.2 (other than clause (e) thereof) and 7.03, respectivelymust be a permitted Disposition in accordance with Section 9.5;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the has occurred and is continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.029.2 (other than Section 9.2(e)); provided that (i) if the continuing or merger involves a Loan Party, the surviving Person entity shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the MergerParty; and
(ge) so long as no Event of Default exists has occurred and is continuing or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.059.5 (other than Section 9.5(e)).
Appears in 3 contracts
Sources: Credit Agreement (eHealth, Inc.), Credit Agreement (eHealth, Inc.), Credit Agreement (eHealth, Inc.)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge or amalgamate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower resulting entity shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing succeed as a matter of law to be incorporated under the Laws all of the United States, any state thereof or Obligations of the District of Columbia, Borrower) or (ii) any one or more other Restricted Subsidiaries; Subsidiaries (provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, a Loan Party shall be the a continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into Person, as applicable, or the resulting entity shall succeed as a Foreign Subsidiarymatter of law to all of the Obligations of such Loan Party);
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) (A) any Restricted Subsidiary may liquidate or liquidate, dissolve or wind up, or (B) any Restricted Subsidiary may change its legal form form, in each case, if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower another Restricted Subsidiary or to another Restricted Subsidiarythe Borrower; provided that if the transferor in such a transaction is a GuarantorLoan Party, then either (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections Section 7.02 and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or amalgamate with any other Person; provided that Person (i1) in a transaction in which the Borrower shall be is the continuing or surviving corporation entity of such transaction or (ii2) if in a transaction in which such other Person is the Person formed by surviving or surviving any continuing entity of such merger or consolidation is not the Borrower transaction (any such Personperson, the “Successor Borrower”); provided that, in the case of this clause (2), (Ai) the such Successor Borrower shall be an entity is organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, ; (Bii) the such Successor Borrower shall expressly assume all the obligations Obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Documents; (Ciii) each Guarantor, unless it is the other party to such merger or consolidation, Guarantor shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor Borrower’s obligations under this Agreement, the Loan Documents; (Div) each Guarantor, unless it is the other party to such merger or consolidation, Guarantor shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreementthe Loan Documents; (v) if requested by the Administrative Agent, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, Property shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and the Loan Documents; (Fvi) the Borrower shall have delivered to information reasonably requested in writing by the Administrative Agent (or any Lender through the Administrative Agent) reasonably required by regulatory authorities under “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act of the type delivered on the Closing Date pursuant to Section 4.01(g) and (vii) the Borrower shall have delivered of an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to certifying the extent reasonably appropriate and applicable, compliance with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreementforegoing;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.026.10;
(f) the Borrower and the Restricted Subsidiaries Acquisition may consummate the Mergerbe consummated; and
(g) so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (RumbleOn, Inc.), Term Loan Credit Agreement (RumbleOn, Inc.), Term Loan Credit Agreement (RumbleOn, Inc.)
Fundamental Changes. MergeThe Lead Borrower shall not, nor shall it permit any Restricted Subsidiary to, merge, amalgamate, dissolve, liquidate, wind up, consolidate with or into another Person, or Dispose dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge or amalgamate with (i) the any Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the such Borrower into a new jurisdiction); provided that (x) the such Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws no Event of the United States, any state thereof Default shall have occurred or the District of Columbiaresulted therefrom, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and except to the extent otherwise constituting an Investment permitted by SECTION 6.02 (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiaryother than SECTION 6.02 (e));
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party, (ii) any Loan Party may merge, amalgamate or consolidate with any other Loan Party, provided that if a Borrower is a party thereto, a Borrower shall be the continuing or surviving Person, and (iiiii) any Subsidiary may liquidate or dissolve or change its legal form if the Lead Borrower determines in good faith that such action is in the best interests of the Lead Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders; provided that with respect to this clause (b)(iii), a certificate of a Responsible Officer shall be delivered to the Administrative Agent at least five (5) Business Days (or within such shorter period as the Administrative Agent shall agree in writing, in its sole discretion) prior to the liquidation, dissolution or change of legal form, together with a reasonably detailed description of the material terms and conditions thereof, stating that the Lead Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement;
(c) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Lead Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (andanother Loan Party, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 SECTION 6.02 and 7.03SECTION 6.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect a Permitted Investment; provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of SECTION 5.11;
(e) so long as no Event of Default exists or would result therefrom, the Lead Borrower and its Restricted Subsidiaries may consummate a merger, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Permitted Disposition;
(f) [Reserved]; and
(g) so long as no Event of Default exists or would result therefrom, the Lead Borrower may merge with any other Person; provided that (i) the Lead Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Lead Borrower (any such Person, the “Successor Lead Borrower”), (A) the Successor Lead Borrower shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia and such transaction shall not have an adverse effect on the attachment, perfection or any territory thereofpriority of the Liens granted under the Security Documents, (B) the Successor Lead Borrower shall expressly assume all the obligations of the Lead Borrower under this Agreement and the other Loan Documents to which the Lead Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (C) each other Borrower and Facility Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Lead Borrower’s obligations under this Agreementthe Loan Documents, (D) each other Borrower and Facility Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Security Documents confirmed that its obligations thereunder shall apply to the Successor Lead Borrower’s obligations under this Agreementthe Loan Documents, (E) if requested by the Collateral Agent, each mortgagor of a Mortgaged Propertymortgaged property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Lead Borrower’s obligations under this Agreementthe Loan Documents, and (F) the Administrative Agent shall have received such financial information, collateral appraisals and examinations, projections (including Availability projections) and other information (all at the cost and expense of the Lead Borrower) as the Administrative may reasonably request in connection with such transaction, (G) the Administrative Agent, in good faith in the exercise of its Permitted Discretion, shall have approved such transaction and (H) the Lead Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Security Document comply with this Agreement and (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including y) an updated Borrowing Base Certificate dated as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with date of such customary and other assumptions and qualifications as may be appropriatemerger (after giving effect thereto); provided, further, that if the foregoing are satisfied, the Successor Lead Borrower will succeed to, and be substituted for, the Lead Borrower under this Agreement;
(e) so long ; and provided further that the Lead Borrower agrees to use commercially reasonable efforts to provide any documentation and other information about the Successor Lead Borrower as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with been reasonably requested in writing by any Lender through the requirements of Section 6.11Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be including without limitation the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05USA Patriot Act.
Appears in 3 contracts
Sources: Credit Agreement (Gymboree Corp), Credit Agreement (Gymboree Corp), Credit Agreement (Gymboree Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person; provided, except that:
, notwithstanding the foregoing provisions of this Section 7.04 but subject to the terms of Sections 6.13 and/or 6.14, (a) any Restricted Subsidiary the Borrower may merge or consolidate with (i) the Borrower (including a merger, the purpose any of which is to reorganize the Borrower into a new jurisdiction); its Subsidiaries provided that (x) the Borrower shall be the continuing or surviving Person and corporation, (yb) such merger does not result in any Loan Party other than the Borrower ceasing to be incorporated under the Laws of the United States, may merge or consolidate with any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiaryother than the Borrower, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(ic) any Subsidiary that is not a Loan Party may merge be merged or consolidate consolidated with or into any Loan Party provided that the continuing or surviving corporation is such Loan Party (or shall be a Person organized under the Laws of the United Sates and shall become a Loan Party hereunder), (d) any Subsidiary that is not a Loan Party may be merged or consolidated with or into any other Subsidiary that is not a Loan Party and Party, (iie) the Borrower or any Subsidiary may liquidate merge or dissolve consolidate with a Target or change its legal form any Subsidiary of a Target in connection with an Investment permitted pursuant to Section 7.03; provided, that, (i) if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantorparty to such merger or consolidation, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or corporation, and (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the a Loan Party other Loan Documents to which than the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person corporation shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party (or shall be the continuing or surviving a Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United StatesSates and shall become a Loan Party hereunder), any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the any Subsidiary may engage in a Permitted Transfer, an Investment permitted by Section 7.03 or make a Restricted Subsidiaries may consummate the Merger; and
Payment permitted by Section 7.06 (in each case other than by reference to this Section 7.04 (or any clause hereof)), and (g) any Subsidiary of the Borrower may be dissolved or liquidated so long as no Default exists (i) such dissolution or would result therefrom, a merger, dissolution, liquidation, consolidation or Dispositionas applicable, could not reasonably be expected to have a Material Adverse Effect and (ii) the residual assets of such Subsidiary shall be transferred to its parent company (provided, that, if the transferor thereof is a Loan Party, the purpose of which is to effect transferee thereof shall be a Disposition permitted pursuant to Section 7.05Loan Party).
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (Houlihan Lokey, Inc.), Credit Agreement (Houlihan Lokey, Inc.)
Fundamental Changes. Merge(a) The Borrower will not, dissolvenor will the Borrower permit any Restricted Subsidiary to, liquidate, merge into or consolidate or amalgamate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Personamalgamate with it, except that:
(ai) so long as such transactions would not materially affect the ability of a Loan Party to repatriate cash to the Borrower in the ordinary course of its business, any Holding Company (other than Holdings) and any Subsidiary may merge into or consolidate or amalgamate with the Borrower as long as the Borrower is the surviving entity or such surviving Person shall assume the obligations of the Borrower hereunder (and if such Subsidiary is an Unrestricted Subsidiary, any Indebtedness of or Lien granted on the assets of such Subsidiary is permitted by Section 6.01 or Section 6.02, as applicable),
(ii) so long as such transactions would not materially affect the ability of a Loan Party to repatriate cash to the Borrower in the ordinary course of its business, any Subsidiary may merge into or consolidate or amalgamate with any Loan Party (as long as (A) such Loan Party is the surviving entity, (B) such surviving entity becomes a Loan Party substantially concurrently with the consummation of such transaction and complies with Section 5.10 and Section 5.11, (C) the disposition of such Loan Party would otherwise be permitted under Section 6.05 (other than Section 6.05(k)) or (D) such Loan Party would otherwise be permitted to be redesignated as an Excluded Subsidiary immediately prior to such transaction (and shall be deemed to be so disposed or redesignated)),
(iii) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party may merge into or consolidate or amalgamate with or into (A) any other Restricted Subsidiary that is not a Loan Party and or (iiB) any Subsidiary may liquidate Loan Party as long as such Loan Party is the surviving entity or dissolve or change its legal form if such surviving Person shall assume the obligations of the applicable Loan Party hereunder,
(iv) the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) or any Restricted Subsidiary may Dispose of all or substantially all of its assets consummate any Investment permitted by Section 6.04 (upon voluntary liquidation other than Section 6.04(aa)) (whether through a merger, consolidation, amalgamation or otherwise): provided that (A) the surviving entity shall be subject to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then requirements of Section 5.10 and Section 5.11 (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 applicable) and 7.03, respectively;
(dB) so long as no Default exists or would result therefrom, if the Borrower may merge with any other Person; provided that (i) is a party to such transaction, the Borrower shall be the continuing surviving entity or such surviving corporation Person shall assume the obligations of the Borrower hereunder,
(v) any Holding Company or Restricted Subsidiary of a Holding Company (including the Borrower) may consummate any sale, transfer or other disposition permitted pursuant to Section 6.05 (other than Section 6.05(k)) (whether through a merger, consolidation, amalgamation or otherwise),
(vi) [reserved], and
(vii) In each of the preceding clauses (i), (ii), (iii), (iv)(B), or (iiv) of this Section 6.03(a), in the case of any merger, consolidation or amalgamation involving the Borrower, if the Person formed by surviving such merger, consolidation or surviving any such merger or consolidation amalgamation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws of the United States, any state thereof, State thereof or the District of Columbia or any territory thereofsuch other jurisdiction as may be reasonably acceptable to the Collateral Agent; provided, that (A) at all times at least one Borrower shall be a corporation or limited liability company organized under the laws of the United States, a State thereof or the District of Columbia, (B) the Successor Borrower Company shall expressly assume all of the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agentparty, (C) each GuarantorLoan Party, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each GuarantorLoan Party, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to the applicable Security Agreement Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of affirmed that its obligations under the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, its Guarantee as reaffirmed pursuant to clause (C) and (F) the Borrower Successor Company shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to supplements preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Security Documents; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement.
(b) The Borrower will not, nor will the Borrower permit any Restricted Subsidiary to, liquidate or dissolve, except that:
(i) any Subsidiary (other than the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to the Borrower or any Loan Party;
(eii) so long as no Default exists any Restricted Subsidiary that is not a Loan Party may transfer all or would result therefromany portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to the Borrower or any other Restricted Subsidiary;
(iii) any Loan Party (other than the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to the Borrower or any other Loan Party;
(A) the Borrower or (B) any Restricted Subsidiary may merge with change its legal form; provided that at all times at least one Borrower shall be a corporation or limited liability company organized under the laws of the United States or a state or territory thereof or the District of Columbia; provided, further that in the case of clauses (A) and (B), such changes shall not adversely impact the scope of the Collateral or the Guarantees provided in the Guaranty;
(v) [reserved];
(vi) [reserved];
(vii) [reserved]; and
(viii) any Restricted Subsidiary (other than the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to any Person in order to effect an Investment permitted pursuant to Section 7.02; provided that 6.04 (other than Section 6.04(aa)) and any Holding Company or any of its Restricted Subsidiaries may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) upon a sale, transfer or other disposition permitted pursuant to Section 6.05 (other than Section 6.05(k)).
(c) The Borrower will not consummate any Division. Notwithstanding the foregoing, (i) any Person that becomes a Loan Party as a result of the continuing or surviving Person changes set forth in each sub-clause of clauses (a) and (b) above shall be a Restricted Subsidiaryhave satisfied the reasonable requirements under “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to which together with the Administrative Agent, and each Lender and each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11Issuing Banks are subject, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person changes set forth in each sub-clause (a) and (iiib) no Domestic Subsidiary may merge with and into any other Person that is above shall not organized under materially impair the Laws security interests of the United States, any state thereof Lenders or materially reduce (on a pro forma basis for the District most recent period of Columbia except to four fiscal quarters of the extent such merger is an Investment permitted under Section 7.02;
(fBorrower) the consolidated revenues of the Borrower and the Restricted Subsidiaries may consummate the Merger; and
other Loan Parties, and (giii ) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Dispositionafter giving effect to any changes set forth in each sub-clause of clauses (a) and (b) above, the purpose of which is to effect a Disposition permitted pursuant to Borrower and Holdings shall comply with Section 7.055.11.
Appears in 3 contracts
Sources: First Lien Credit Agreement (GoodRx Holdings, Inc.), First Lien Credit Agreement (GoodRx Holdings, Inc.), First Lien Credit Agreement (GoodRx Holdings, Inc.)
Fundamental Changes. (a) Merge, dissolve, liquidate, combine or consolidate with or into another any Person, or Dispose liquidate or wind up or dissolve itself (or suffer any liquidation or dissolution), or sell, lease, assign, transfer or otherwise dispose of, all or substantially all of (its Property, business or assets, whether in one a single transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with for (i) the Borrower (including mergers or consolidations of a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)wholly-owned Subsidiary with another wholly-owned Subsidiary; provided that (x) if any party to any such transaction is a Borrower, the Borrower surviving entity of such transaction shall be the continuing or surviving Person a Borrower; and (y) if any party to any such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that transaction is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary an Obligor that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and Borrower, the surviving entity of such transaction shall be an Obligor; (ii) mergers or consolidations of a wholly-owned Subsidiary into a Borrower; (iii) sales, leases, transfers or other dispositions by a Subsidiary (the “Transferring Subsidiary”) of any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation liquidation, winding up or dissolution (which shall be permitted so long as such Subsidiary’s assets are disposed of in accordance with this clause (iii)) or otherwise) to the Borrower or to another Restricted any other Subsidiary; provided that if the transferor in such a transaction Transferring Subsidiary is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which Obligor that is not a Loan Party in accordance with Sections 7.02 Borrower, such sale, lease, transfer or disposition shall be to an Obligor and 7.03if such Transferring Subsidiary is a Subsidiary of a Borrower, respectively;such sale, lease, transfer or disposition shall be to such Borrower; and (iv) Permitted Acquisitions.
(db) so long as no Default exists Solely in the case of an Obligor, change its name or would result therefromconduct business under any fictitious name; change its tax, the Borrower may merge with any charter or other Personorganizational identification number; provided that change its form or state of organization, except in each case under this clause (i) the Borrower shall be the continuing or surviving corporation or (iib) if the Person formed by or surviving any (I) such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, Obligor shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, given Agent ten (D10) each Guarantor, unless it is the other party to such merger or consolidation, Business Days prior written notice thereof and (II) Agent shall have taken all steps reasonably deemed necessary by a supplement Agent to maintain the Security Agreement confirmed that its obligations thereunder shall apply to validity, enforceability, perfection and priority of Agent’s security interest in the Successor Borrower’s obligations under this AgreementCollateral of such Obligor, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, and Obligor shall have executed and delivered such documents, instruments and agreements requested by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05connection therewith.
Appears in 3 contracts
Sources: Loan Agreement (School Specialty Inc), Loan Agreement (School Specialty Inc), Loan Agreement (School Specialty Inc)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary to, liquidate, (x) merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, (y) sell, transfer, license, lease, enter into any sale-leaseback transactions with respect to, or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its assets Subsidiaries, taken as a whole, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or (z) to liquidate or in favor of any Persondissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary or any other Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Person (other than the Borrower) may merge into or consolidate with any Subsidiary in a transaction in which the surviving entity is a Subsidiary (provided that is not any such merger or consolidation involving a Guarantor must result in a Guarantor as the surviving entity);
(iii) any Subsidiary may sell, transfer, license, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary;
(iv) any Loan Party may sell, transfer, license, lease or otherwise dispose of its assets to any other Loan Party;
(v) in connection with any acquisition, any Subsidiary may merge into or consolidate with or into any other Person, so long as the Person surviving such merger or consolidation shall be a Subsidiary (provided that is not any such merger or consolidation involving a Loan Party and Guarantor must result in a Guarantor as the surviving entity);
(iivi) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders;; and
(cvii) any Restricted Subsidiary may Dispose of merge into or consolidate with any other Person in a transaction not otherwise prohibited hereunder and all or substantially all of its assets (upon voluntary liquidation the Equity Interests of any Subsidiary may be sold, transferred or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantorotherwise disposed of, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists the aggregate consideration received in respect of all such mergers or would result therefromconsolidations, sales, transfers or other disposals pursuant to this clause (vii) shall not exceed the greater of (a) $100,000,000 and (b) 10% of Total Assets as of the date of such merger, consolidation, sale, transfer or other disposal.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower may merge with any other Person; provided that (i) and its Subsidiaries on the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws date of the United States, any state thereof, the District execution of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and businesses reasonably related, complementary or incidental thereto, which businesses, for the avoidance of doubt, may include or relate to internet, mobile and other Loan Documents to which the Borrower is a party pursuant to a supplement hereto media platforms or thereto in form reasonably satisfactory to the Administrative Agentdevices, (C) each Guarantormobile applications, unless it is the other party to such merger or consolidationpublishing, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreementadvertising, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate content creation and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05distribution.
Appears in 3 contracts
Sources: Revolving Credit Agreement, Revolving Credit Agreement (Twitter, Inc.), Revolving Credit Agreement (Twitter, Inc.)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any other Restricted Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of (whether in one transaction doubt, shall not restrict the Borrower or in a series of transactions) all or substantially all of any Restricted Subsidiary from changing its assets (whether now owned or hereafter acquired) to or in favor of any Personorganizational form), except that:
(ai) any Restricted Subsidiary may merge or consolidate with (iA) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (iiB) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary, a Loan Party shall be Subsidiary (1) the continuing or surviving Person and shall be a Subsidiary Loan Party or (B2) no Domestic if the continuing or surviving Person is not a Subsidiary may merge with and into a Foreign SubsidiaryLoan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 6.04;
(iii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (iiB) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(ciii) any Restricted Subsidiary may Dispose make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (iA) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or Loan Party, (iiB) to the extent constituting an Investment, such Investment must be is a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 Section 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and 7.03, respectivelyany promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04;
(div) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (iA) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (A1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofa Covered Jurisdiction, (B2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Term Administrative Agent, (C3) each GuarantorLoan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have by a supplement reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Guaranty confirmed Term Administrative Agent, that its Guarantee of and grant of any Liens as security for the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F4) the Borrower shall have delivered to the Term Administrative Agent an officer’s a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement Agreement; provided further that (andy) if such Person is not a Loan Party, with respect to such opinion no Event of counsel, otherwise substantially consistentDefault (or, to the extent reasonably appropriate related to a Permitted Acquisition or any Investment not prohibited by Section 6.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided further that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender through the Term Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(ev) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.026.04; provided that (i) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its the Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, Sections 5.11 and 5.12;
(iivi) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, effect a merger, dissolution, liquidation, liquidation consolidation or Disposition, the purpose of which is amalgamation to effect a Disposition permitted pursuant to Section 7.056.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 3 contracts
Sources: Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.), Term Loan Credit Agreement (Builders FirstSource, Inc.)
Fundamental Changes. Merge(a) The Parent will not, dissolveand will not permit any Restricted Subsidiary to, liquidate, merge into or consolidate or amalgamate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Personamalgamate with it, except that:
(a) any Restricted Subsidiary may merge with : (i) any Subsidiary (other than Holdco and the Borrower) may merge into or consolidate or amalgamate with the Parent or the Borrower (including a mergeras long as the Parent or the Borrower, as the purpose case may be, is the surviving entity or such surviving Person shall assume the obligations of which is to reorganize the Parent or the Borrower into a new jurisdiction); provided that hereunder (x) the Borrower shall be the continuing or surviving Person and (y) if such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United StatesSubsidiary is an Unrestricted Subsidiary, any state thereof Indebtedness of or Lien granted on the District assets of Columbiasuch Subsidiary is permitted by Section 6.01 or 6.02), or (ii) any one Subsidiary (other than Holdco and the Borrower) may merge into or more other Restricted Subsidiaries; provided that consolidate or amalgamate with any Loan Party (as long as (A) when any Restricted Subsidiary that such Loan Party is the surviving entity, (B) such surviving entity becomes a Loan Party substantially concurrently with the consummation of such transaction and complies with Section 5.11 and Section 5.12, (C) if such Subsidiary is merging with another Restricted an Unrestricted Subsidiary, a and Indebtedness of or Lien granted on the assets of such Subsidiary is permitted by Section 6.01 or 6.02 and (D) the disposition of such Loan Party would otherwise be permitted under Section 6.05 (other than Section 6.05(l)) or such Loan Party would otherwise be permitted to be to redesignated as an Excluded Subsidiary immediately prior to such transaction (and shall be the continuing deemed to be so disposed or surviving Person and redesignated), (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(iiii) any Restricted Subsidiary that is not a Loan Party may merge into or consolidate or amalgamate with or into (A) any other Restricted Subsidiary that is not a Loan Party or (B) any Loan Party, (iv) the Parent or any Restricted Subsidiary may consummate any Investment permitted by Section 6.04 (other than Section 6.04(aa)) (whether through a merger, consolidation, amalgamation or otherwise), provided that (A) the surviving entity shall be subject to the requirements of Section 5.11 and Section 5.12 (to the extent applicable) and (iiB) any Subsidiary may liquidate or dissolve or change its legal form if the Parent, Holdco or the Borrower determines in good faith that is a party to such action is in transaction, the best interests Parent, Holdco or the Borrower, as the case may be, shall be the surviving entity or such surviving Person shall assume the obligations of the Borrower and its Subsidiaries and if not materially disadvantageous to Parent, Holdco or the Lenders;
Borrower, as the case may be, hereunder, (cv) any Restricted Subsidiary (other than Holdco or the Borrower) may Dispose of all consummate any sale, transfer or substantially all of its assets other disposition permitted pursuant to Section 6.05 (upon voluntary liquidation other than Section 6.05(l)) (whether through a merger, consolidation, amalgamation or otherwise), provided that the surviving entity shall be subject to the requirements of Section 5.11 and Section 5.12 (to the extent applicable), (vi) to the Parent and the Restricted Subsidiaries may effect the Permitted Tax Restructuring; provided that the Borrower shall remain an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (vii) any Person may merge into, consolidate or amalgamate with the Company, the Borrower or to another Restricted Subsidiary; provided that if any of their Subsidiaries in connection with the transferor Transactions and (viii) in such a transaction is a Guarantor, then each of the preceding clauses (i), (ii) or (iv) of this Section 6.03(a), in the transferee must either be case of any merger, consolidation or amalgamation involving the Borrower Parent, Holdco or a Guarantor (andthe Borrower, if the transferor is a Domestic SubsidiaryPerson surviving such merger, the transferee must also be a Domestic Subsidiary) consolidation or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which amalgamation is not a Loan Party in accordance with Sections 7.02 and 7.03the Parent, respectively;
(d) so long as no Default exists Holdco or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), no Default and Event of Default shall have occurred and be continuing and (A) in the case of a merger, consolidation or amalgamation involving the Borrower, the Successor Borrower Company shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) in the case of a merger, consolidation or amalgamation involving the Parent or Holdco, the Successor Borrower Company shall be an entity organized or existing under the laws of the United States or the United Kingdom (unless otherwise agreed to by the Administrative Agent) and the security interests of the Collateral Agent in the Collateral shall not be materially impaired, (C) the Successor Company shall expressly assume all the obligations of the Borrower Parent, Holdco or the Borrower, as applicable, under this Agreement and the other Loan Documents to which the Parent, Holdco or the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agentparty, (CD) each GuarantorGuarantor of the Obligations of the Borrower, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (DE) each GuarantorGuarantor of the Obligations of the Borrower, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to the applicable Security Agreement Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (EF) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of affirmed that its obligations under the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, its Guaranty as reaffirmed pursuant to clause (C) and (F) the Borrower Successor Company shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to supplements preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Security Documents; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower Parent, Holdco or the Borrower, as the case may be, under this Agreement;.
(eb) so long as no Default exists The Parent will not, nor will the Parent permit any Restricted Subsidiary to, liquidate or would result therefromdissolve, except that: (i) any Subsidiary (other than the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to any other Loan Party, (ii) any Restricted Subsidiary that is not a Loan Party may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to the Parent or any Restricted Subsidiary, (iii) any Loan Party (other than the Parent or the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to any Loan Party, (iv) the Parent or any Restricted Subsidiary may merge with change its legal form, (v) the Parent and the Restricted Subsidiaries may effect the Permitted Tax Restructuring and (vi) any Restricted Subsidiary (other than the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to any Person in order to effect an Investment permitted pursuant to Section 7.02; provided that 6.04 (iother than Section 6.04(aa)) the continuing or surviving Person shall be a Restricted Subsidiarysale, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any transfer or other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.056.05 (other than Section 6.05(l)).
Appears in 3 contracts
Sources: Credit Agreement (Micro Focus International PLC), Credit Agreement (Micro Focus International PLC), Credit Agreement (Micro Focus International PLC)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with (i) the any Borrower (including a merger, the purpose of which is to reorganize the such Borrower into a new jurisdiction); provided that (x) the such Borrower shall be the continuing or surviving Person and (y) such merger does not result in any Overseas Borrower ceasing to be a Qualifying Foreign Subsidiary or the Borrower Company ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Borrower Holdings determines in good faith that such action is in the best interests of the Borrower Holdings and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorGuarantor or a Borrower, then (i) the transferee must either be the a Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower Company may merge with any other Person; provided that (i) the Borrower Company shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower Company (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower Company under this Agreement and the other Loan Documents to which the Borrower Company is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each U.S. Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (D) each U.S. Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement, and (F) the Borrower Company shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower Company under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower Company and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 3 contracts
Sources: Second Refinancing and Incremental Amendment (Sungard Capital Corp Ii), Credit Agreement (Sungard Data Systems Inc), Credit Agreement (Sungard Data Systems Inc)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), including by an allocation of assets among newly divided limited liability companies pursuant to a “plan of division” under the Delaware Limited Liability Company Act, except that:
(a1) Subject to Section 3.03(a) of the Security Agreement, any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, amalgamation or consolidation, the purpose of which is to reorganize or continue the Borrower into a new jurisdiction); provided that that:
(xa) the Borrower shall be the continuing or surviving Person and Person, and
(yb) such merger merger, amalgamation or consolidation does not result in the Borrower ceasing to be formed, incorporated or organized under the Laws of Luxembourg (unless formed, incorporated or organized in the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;).
(i) any Subsidiary that is not a Loan Party may amalgamate, merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary that is a Loan Party may merge or consolidate with a Subsidiary that is not a Loan Party so long as the resulting Investment in such Non-Loan Party Subsidiary, if newly made, would otherwise constitute a Permitted Investment;
(b) any Subsidiary may amalgamate, merge or consolidate with or into any other Subsidiary that is a Loan Party; provided that a Loan Party shall be the continuing or surviving Person or the resulting Investment in the continuing or surviving Person, if newly made, would otherwise constitute a Permitted Investment;
(c) any merger, amalgamation or consolidation the sole purpose of which is to reincorporate or reorganize or continue a Loan Party in another jurisdiction in the United States will be permitted, and
(d) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders; provided that in the case of this Section 7.03(2), (x) no Event of Default shall have occurred and be continuing or result therefrom or, in the case of a Permitted Acquisition or similar committed investment, no Event of Default under Section 8.01(1) or Section 8.01(6) shall have occurred and be continuing or result therefrom and (y) the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or would otherwise constitute a Permitted Investment;
(c3) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (ix) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (iiy) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyParty;
(d4) so long as no Event of Default exists shall have occurred and be continuing or would result therefrom or, in the case of a Permitted Acquisition or similar committed investment, no Event of Default under Section 8.01(1) or Section 8.01(6) shall have occurred and be continuing or result therefrom, the Borrower may amalgamate, merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that that:
(ia) the Borrower shall be the continuing or surviving corporation or (iib) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the a “Successor Borrower”), ): the Successor Borrower will:
(A) the Successor Borrower shall be an entity formed, incorporated, organized or existing under the laws Laws of Luxembourg or the United States, any state thereof, thereof or the District of Columbia or any territory thereof, Columbia;
(B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent and the Borrower; and
(C) deliver to the Administrative Agent (I) an Officer’s Certificate stating that such merger, amalgamation or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) satisfies the requirements under this Section 7.03(4) and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions (similar in scope and substance to the opinions delivered to the Administrative Agent on the Effective Date or the Closing Date, as applicable) to the extent reasonably requested by the Administrative Agent;
(ii) substantially contemporaneously with such transaction (or at a later date as may be agreed by the Administrative Agent),
(A) each Guarantor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have will by a supplement to the Guaranty confirmed that (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guarantee shall apply to Guaranty of the Obligations (including the Successor Borrower’s obligations under this Agreement, ),
(DB) each GuarantorLoan Party, unless it is the other party to such merger merger, amalgamation or consolidation, shall have will, by a supplement to the Security Agreement confirmed (or in another form reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder, and
(C) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation, will, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent and the Borrower), confirm that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, ;
(Eiii) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and [reserved]; and
(Fiv) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement shall have received at least three (and, with respect 3) Business Days prior to such opinion transaction all documentation and other information in respect of counsel, otherwise substantially consistent, to the extent reasonably appropriate Successor Borrower required under applicable “know your customer” and applicable, with the opinions delivered with respect to the Borrower on the Closing Dateanti-money laundering rules and regulations, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)USA PATRIOT Act; provided, further, provided further that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e5) so long as no Default exists or would result therefrom, [reserved];
(6) any Restricted Subsidiary may amalgamate, merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect an a Permitted Investment or other investment permitted pursuant to Section 7.027.05 so long as no Event of Default shall have occurred and be continuing or result therefrom or, in the case of a Permitted Acquisition or similar committed investment, no Event of Default under Section 8.01(1) or Section 8.01(6) shall have occurred and be continuing or result therefrom; provided further, that (i) the continuing or surviving Person shall will be a Restricted SubsidiaryLoan Party, in each case, which together with each of its Restricted Subsidiaries, shall will have complied with the applicable requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f7) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation, consolidation or Dispositiondisposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.057.04 (other than under clause (c) of the definition of “Asset Sale”) will be permitted;
(8) subject to Section 3.03(a) of the Security Agreement, the Borrower may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name;
(9) the Loan Parties and their respective Subsidiaries may consummate the Transactions; and
(10) the commencement of any proceedings against any Subsidiary under Debtor Relief Laws to the extent such proceedings do not constitute an Event of Default under Section 8.01(6) will be permitted. Notwithstanding anything in this Section 7.03 and subject to the Collateral and Guarantee Requirement, in the event a Loan Party changes its (i) name as it appears in official filings in its jurisdiction of incorporation, organization or formation or (ii) chief place of business or chief executive office, each Loan Party shall within sixty (60) days (or such longer time period as may be agreed by the Collateral Agent) after any such change, give the Collateral Agent written notice of such change.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (Alvotech), Term Loan Credit Agreement (Alvotech), Term Loan Credit Agreement (Alvotech)
Fundamental Changes. Merge, dissolve, liquidate, amalgamate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, (other than in the case of clause (e)) so long as no Event of Default would result therefrom:
(a) any Restricted Subsidiary Borrower Party (other than the U.S. Borrower) may merge merge, amalgamate or consolidate with (i) the U.S. Borrower (including a merger, the purpose of which is to reorganize the U.S. Borrower into a new jurisdictionjurisdiction in any State of the United States or the District of Columbia); provided that the U.S. Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the U.S. Borrower pursuant to documents reasonably acceptable to the Administrative Agent, (ii) the Parent Borrower; provided that the Parent Borrower or any New Parent Borrower, as described in and subject to the requirements of the definition of “Parent Borrower”, shall be the continuing or surviving Person, or (iii) any one or more other Borrower Parties; provided that (x) the any Borrower Party that is not a Controlled Foreign Subsidiary or a FSHCO may not merge with any Borrower Party that is a Controlled Foreign Subsidiary or a FSHCO if such Controlled Foreign Subsidiary or such FSHCO shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, Borrower Party that is not a Loan Party (A) the Guarantor shall be the continuing or surviving Person and Person, (B) no Domestic Subsidiary may merge to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Borrower Party which is not a Loan Party in accordance with Sections 7.02 and into 7.03, respectively and (C) to the extent constituting a Foreign SubsidiaryDisposition, such Disposition must be permitted hereunder;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Subsidiary Borrower Party (other than a Borrower) may liquidate or dissolve dissolve, or any Borrower or any Borrower Party may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Borrower determines Borrowers determine in good faith that such action is in the best interests interest of the Borrower Holdings and its Subsidiaries and if is not materially disadvantageous to the LendersLenders in any material respect (it being understood that in the case of any dissolution of a Borrower Party that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Borrower Party that is a Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Borrower Party that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary (other than a U.S. Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Holdings or to another any Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the a Borrower or a Guarantor (and, if in the transferor is same jurisdiction or a Domestic Subsidiary, different jurisdiction reasonably satisfactory to the transferee must also be a Domestic Subsidiary) or Administrative Agent and (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor U.S. Borrower will succeed to, and be substituted for, the Borrower under this Agreementmay Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Domestic Loan Party;
(ed) so long as no Default exists any Borrower Party (other than a Borrower) may merge, amalgamate or would result therefromconsolidate with, any Restricted Subsidiary may merge with or dissolve into, any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiaryshall, which together with each of its Restricted Subsidiariesto the extent subject to the terms hereof, shall have complied with the requirements of Section 6.11, 6.12 and (ii) when any Restricted Subsidiary that is to the extent constituting an Investment, such Investment must be a Loan Party is merging permitted Investment in accordance with any other Person, a Loan Party shall be the continuing or surviving Person Section 7.02 and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent constituting a Disposition, such merger is an Investment Disposition must be permitted under Section 7.02hereunder;
(e) [reserved];
(f) any Restricted Subsidiary (other than the Borrower and the Restricted Subsidiaries U.S. Borrower) may consummate the Merger; and
(g) so long as no Default exists merge, dissolve, liquidate, amalgamate, consolidate with or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is into another Person in order to effect a Disposition permitted pursuant to Section 7.057.05 (other than Section 7.05(d)(A)); and
(g) any Investment permitted by Section 7.02 may be structured as a merger, consolidation or amalgamation. Notwithstanding anything to the contrary herein and (1) subject to the provisions set forth in the definition of “Holdings,” for the avoidance of doubt, Holdings shall be permitted to (a) merge, consolidate or amalgamate with an Affiliate of Holdings or an entity incorporated or organized solely for the purpose of reincorporating or reorganizing Holdings in any jurisdiction permitted pursuant to the definition of “Holdings”, or (b) reorganize or reincorporate itself in in any jurisdiction permitted pursuant to the definition of “Holdings”, in each case, so long as the principal amount of Indebtedness of Holdings and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Agreement) and (2) subject to the provisions set forth in the definition of “Parent Borrower,” for the avoidance of doubt, any merger, conversion, legal continuation, continuation to a foreign jurisdiction or otherwise by Previous Parent Borrower with or into New Parent Borrower and the assumption of all obligations by New Parent Borrower immediately thereafter shall be permitted under this Agreement. The Administrative Agent and the Collateral Agent are hereby authorized to execute and deliver such documents and take such other actions as may be reasonably requested by Holdings to give effect to the successions contemplated hereby (and the Administrative Agent and the Collateral Agent are entitled to rely, without independent investigation on any officer’s certificate delivered to it by Holdings (including as to its authority hereunder) which certificate shall be delivered by the Loan Parties upon request of the Administrative Agent or the Collateral Agent).
Appears in 3 contracts
Sources: Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any other Restricted Subsidiary to, liquidate, merge into or amalgamate or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or amalgamate or consolidate with it, or liquidate or dissolve (which, for the avoidance of (whether in one transaction doubt, shall not restrict the Borrower or in a series of transactions) all or substantially all of any Restricted Subsidiary from changing its assets (whether now owned or hereafter acquired) to or in favor of any Personorganizational form), except that:
(ai) any Restricted Subsidiary other than the Borrower may merge merge, amalgamate or consolidate with or into (iA) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (iiB) any one or more Restricted Subsidiaries other Restricted Subsidiariesthan the Borrower; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary, a Loan Party shall be Subsidiary other than the Borrower (1) the continuing or surviving Person and shall be a Subsidiary Loan Party or (B2) no Domestic if the continuing or surviving Person is not a Subsidiary may merge with and into a Foreign SubsidiaryLoan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 6.05;
(iii) (A) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (iiB) any Restricted Subsidiary other than the Borrower may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the LendersRestricted Subsidiaries, taken as a whole;
(ciii) any Restricted Subsidiary other than the Borrower may Dispose make a disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (iA) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or Loan Party, (iiB) to the extent constituting an InvestmentInvestment in a Restricted Subsidiary that is not a Loan Party, such Investment must be is a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 Section 6.05 or (C) to the extent constituting a disposition to a Restricted Subsidiary that is not a Loan Party, such disposition is for Fair Market Value and 7.03, respectivelyany promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.05;
(div) so long as no Default exists or would result therefrom, the Borrower may merge merge, amalgamate or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (iA) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerEntity”), (A1) the Successor Borrower Entity shall be an entity organized or existing under the laws of, in the case of the Borrower, the United States, any state thereof, State thereof or the District of Columbia or any territory thereofColumbia, (B2) the Successor Borrower Entity shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (C3) each Guarantor, Loan Party other than the Borrower unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Guaranty confirmed Administrative Agent, that its Guarantee of and grant of any Liens as security for the Secured Obligations shall apply to the Successor BorrowerEntity’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F4) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate of a Responsible Officer of the Borrower and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Limited Condition Transaction, no Specified Event of Default) shall exist after giving effect to such merger, amalgamation or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Entity will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Entity as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the PATRIOT Act;
(ev) so long as no Default exists or would result therefrom, any Restricted Subsidiary other than the Borrower may merge merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.026.05; provided that (i) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its the Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger5.11; and
(gvi) so long as no Default exists or would result therefrom, any Restricted Subsidiary other than the Borrower may effect a merger, dissolution, liquidation, liquidation consolidation or Disposition, the purpose amalgamation (or dispose of which is all or substantially all of its assets) to effect a Disposition an Asset Sale permitted pursuant to Section 7.056.04 or any other disposition not constituting an Asset Sale.
Appears in 3 contracts
Sources: Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose engage in any Asset Sale of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge merge, consolidate, amalgamate or liquidate with or into (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; , including any such merger, consolidation, or amalgamation, the purpose of which is to change the jurisdiction of the Borrower or any Subsidiary so long as the Borrower remains organized under the laws of the United States, a state within the United States or the District of Columbia and the Loan Parties comply with the Collateral Documents, provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a such Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(ib) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines engage in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose an Asset Sale of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided Loan Party;
(c) any Subsidiary that if is not a Loan Party may dispose of all or substantially all its assets (including any Asset Sale that is in the transferor in such nature of a transaction is a Guarantor, then liquidation) to (i) the transferee must either be the Borrower or another Subsidiary that is not a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyParty;
(d) so long as no Default exists the Borrower and its Subsidiaries may enter to any merger, consolidation, or would result therefromamalgamation or effect Asset Sales in order to effect any corporate reorganization, provided that in the case of a merger, consolidation or amalgamation involving a Loan Party, a Loan Party must be the survivor of such merger, consolidation or amalgamation;
(e) in connection with any Permitted Investment, any Subsidiary of the Borrower may merge into or consolidate with any other PersonPerson or permit any other Person to merge into or consolidate with it; provided that (i) the Borrower Person surviving such merger shall be a Subsidiary of the continuing or surviving corporation or Borrower and (ii) if in the Person formed by or surviving case of any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which any Loan Party (other than the Borrower Borrower) is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agentparty, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other the surviving Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;; and
(f) the Borrower and the Restricted its Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition any Asset Sale permitted pursuant to by Section 7.05.
Appears in 3 contracts
Sources: Amendment Agreement No. 10 (Avient Corp), Amendment Agreement (Avient Corp), Amendment Agreement (Polyone Corp)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (including, in each case, pursuant to a Delaware LLC Division), except that:
(a) any Restricted Subsidiary other than the Borrower may merge or amalgamate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; Subsidiaries (provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, a Loan Party shall be the a continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into Person, as applicable, or the resulting entity shall succeed as a Foreign Subsidiarymatter of law to all of the Obligations of such Loan Party);
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) (A) any Restricted Subsidiary may liquidate or liquidate, dissolve or wind up, and (B) any Restricted Subsidiary may change its legal form form, in each case, if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then either (ix) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (iiy) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections Section 7.02 and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or amalgamate with any other Person or, assign all of the obligations hereunder to another Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or in connection with any such assignment to another Person (any such PersonPerson under this clause (ii), the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) the Successor Company shall cause such amendments, supplements or other instruments to be executed, delivered, filed and recorded (and deliver a copy of same to the Administrative Agent and Collateral Agent) in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Collateral Agent on the Collateral owned by or transferred to the Successor Company, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the UCC of the relevant states, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (DE) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (EF) each mortgagor the Administrative Agent shall have received all documentation and other information about the Successor Company that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and (G) at the time of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, be in pro forma compliance with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Financial Covenant; provided, further, further that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.026.10;
(f) the Borrower and the Restricted Subsidiaries any Reorganization may consummate the Merger; andbe consummated;
(g) so long as no Event of Default exists or would result therefrom, a merger, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected (other than pursuant to Section 7.05(e)); and
(h) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, in each case, by and among the Borrower and/or its Restricted Subsidiaries, the purpose of which is to effect a Reorganization.
Appears in 3 contracts
Sources: Eighth Amendment to Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (iA) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (iiB) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and Party, (ii) any Subsidiary may liquidate or dissolve or and (iii) any Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than 7.02(e) or 7.02(m)) and 7.03, respectively;
(d) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement; provided, further, that the Borrower agrees to use commercially reasonable efforts to provide any documentation and other information about the Successor Company as shall have been reasonably requested in writing by the Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act;
(e) so long as (in the case of a merger involving a Loan Party) no Event of Default exists has occurred and is continuing or would result therefromtherefrom (limited in connection with a merger involving a Limited Condition Transaction to Defaults or Events of Default pursuant to Sections 8.01(a) and (f) and any other Default or Event of Default that is a condition to the effectiveness of the Limited Condition Transaction), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary of the Borrower, which together with each of its their Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person 6.11 and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except Section 6.13 to the extent such merger is an Investment permitted under Section 7.02;
(f) required pursuant to the Borrower Collateral and the Restricted Subsidiaries may consummate the MergerGuarantee Requirement; and
(gf) so long as no Event of Default exists has occurred and is continuing or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 or a Restricted Payment permitted pursuant to Section 7.06.
Appears in 3 contracts
Sources: Credit Agreement (Signify Health, Inc.), Credit Agreement (Signify Health, Inc.), Credit Agreement (Signify Health, Inc.)
Fundamental Changes. Merge(a) Neither Holdings nor the Borrower will, dissolvenor will they permit any other Restricted Subsidiary or Intermediate Parent to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(ai) any Restricted Subsidiary or Intermediate Parent may merge with (iA) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (iiB) in the case of any Restricted Subsidiary, any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be Subsidiary (x) the continuing or surviving Person and shall be a Subsidiary Loan Party or (By) no Domestic if the continuing or surviving Person is not a Subsidiary may merge with and into a Foreign SubsidiaryLoan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 6.04;
(iii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (iiB) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower Holdings determines in good faith that such action is in the best interests of Holdings, the Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(ciii) any Restricted Subsidiary may Dispose make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (iA) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or Loan Party, (iiB) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 Section 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair value and 7.03, respectivelyany promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04;
(div) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (iA) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (Aw) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, State thereof or the District of Columbia or any territory thereofColumbia, (Bx) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (Cy) each GuarantorLoan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have by a supplement reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Guaranty confirmed Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (Fz) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement Agreement; provided further that (and1) if such Person is not a Loan Party, with respect no Default exists after giving effect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate merger or consolidation and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that (2) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided further that the Borrower agrees to use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(ev) Holdings may merge or consolidate with any other Person, so long as no Event of Default exists after giving effect to such merger or would result therefromconsolidation; provided that (A) Holdings shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”), (w) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (x) each Loan Party other than Holdings, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Secured Obligations shall apply to the Successor Holdings’ obligations under this Agreement, (y) the Successor Holdings shall, immediately following such merger or consolidation, directly or indirectly own all Subsidiaries owned by Holdings immediately prior to such merger and (z) Holdings shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided further that if the foregoing requirements are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement and the other Loan Documents; provided further that the Borrower agrees to use commercially reasonable efforts to provide any documentation and other information about the Successor Holdings as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act
(vi) any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.026.04; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11Sections 5.11 and 5.12 and if the other party to such transaction is not a Loan Party, no Default exists after giving effect to such transaction;
(iivii) when Holdings, the Borrower or any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be may effect the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the MergerIPO Reorganization Transactions; and
(gviii) so long as no Default exists or would result therefrom, any Restricted Subsidiary may effect a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is amalgamation to effect a Disposition permitted pursuant to Section 7.056.05; provided that if the other party to such transaction is not a Loan Party, no Default exists after giving effect to the transaction.
(b) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary or Intermediate Parent to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Restricted Subsidiaries on the Closing Date and businesses reasonably related or ancillary thereto.
(c) Holdings and any Intermediate Parent will not conduct, transact or otherwise engage in any business or operations other than (i) (x) the ownership and/or acquisition of the Equity Interests of the Borrower and any Intermediate Parent and (y) in the case of Holdings, prior to an IPO, the Equity Interests of IPO Listco directly or indirectly and the Equity Interests of IPO Subsidiary indirectly through IPO Listco, (ii) the maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such maintenance, (iii) participating in tax, accounting and other administrative matters, (iv) the performance of its obligations under and in connection with the Loan Documents, any documentation governing any Indebtedness or Guarantee permitted to be incurred or made by it under Article 6, the Holdings LLC Agreement, and the other agreements contemplated hereby, (v) any public offering of its common stock or any other issuance or registration of its Equity Interests for sale or resale not prohibited by this Agreement, including the costs, fees and expenses related thereto, (vi) any transaction that Holdings or any Intermediate Parent is permitted to enter into or consummate under Article 6 (including, but not limited to, the making of any Restricted Payment permitted by Section 6.08 or holding of any cash or Permitted Investments received in connection with Restricted Payments made in accordance with Section 6.08 pending application thereof in the manner contemplated by Section 6.04, the incurrence of any Indebtedness permitted to be incurred by it under Section 6.01 and the making of any Investment permitted to be made by it under Section 6.04), (vii) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues and paying taxes, (viii) providing indemnification to officers and directors and as otherwise permitted in Section 6.09, (ix) activities incidental to the consummation of the Transactions, (x) activities reasonably incidental to the consummation of an IPO, including the IPO Reorganization Transactions and (xi) activities incidental to the businesses or activities described in clauses (i) to (x) of this paragraph.
(d) Holdings and any Intermediate Parent will not own or acquire any assets (other than Equity Interests as referred to in paragraph (c)(i) above, cash, Permitted Investments, loans and advances made by Holdings or any Intermediate Parent under Section 6.04(b) and intercompany Investments consisting of Indebtedness permitted to be made by it under Section 6.04) or incur any liabilities (other than liabilities as referred to in paragraph (c) above, liabilities imposed by law, including tax liabilities, and other liabilities incidental to its existence and business and activities permitted by this Agreement).
(e) Prior to the consummation of an IPO, neither IPO Shell Company will conduct, transact or otherwise engage in any business or operations other than (i) the maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such maintenance, (ii) participating in tax, accounting and other administrative matters, (iii) in the case of the IPO Listco, holding Equity Interests of the IPO Subsidiary, (iv) holding Equity Interests of Holdings, (v) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues and paying taxes, (vi) providing indemnification to officers and directors and as otherwise permitted in Section 6.09, (vii) activities incidental to the consummation of an IPO, including the IPO Reorganization Transactions and (viii) activities incidental to the businesses or activities described in clauses (i) to (vii) of this paragraph; provided that each IPO Shell Company shall cease to be a subsidiary of Holdings no later than the consummation of an IPO.
Appears in 3 contracts
Sources: Incremental Revolving Facility Amendment and Joinder Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, merger the purpose of which is to reorganize the Borrower into in a new jurisdictionState within the United States); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and Party, (ii) (A) any Subsidiary may liquidate liquidate, wind up or dissolve dissolve, or (B) any Restricted Subsidiary may change its legal form form, in each case, if in either case, the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 Section 7.02 (other than Section 7.02(f)) and 7.03Section 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02Section 7.02 (other than Section 7.02(f)); provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(fe) the Borrower and the Restricted Subsidiaries may consummate the Merger[reserved]; and
(gf) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, winding up, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Section 7.05 (other than Section 7.05(e)), may be effected.
Appears in 3 contracts
Sources: Amendment No. 1 to Credit Agreement (Phibro Animal Health Corp), Credit Agreement (Phibro Animal Health Corp), Credit Agreement (Phibro Animal Health Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, (or Dispose agree to do any of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Personthe foregoing), except that, so long as no Default or Event of Default shall have occurred and be continuing prior to or immediately after giving effect to any action described below or would result therefrom:
(a) any Restricted Subsidiary which is not a Loan Party may merge with (i) the Borrower (including a mergerLoan Party, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower Loan Party shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; Subsidiaries which are not Loan Parties, provided that (A) when any Restricted wholly-owned Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party the wholly-owned Subsidiary shall be the continuing or surviving Person and Person;
(Bb) no Domestic any Subsidiary which is a Loan Party may merge into any Subsidiary which is a Loan Party or into a Borrower, provided, that, in any merger involving a Borrower, such Borrower shall be the continuing or surviving Person;
(c) in connection with a Permitted Acquisition, any Subsidiary of a Loan Party may merge with or into or consolidate with any other Person or permit any other Person to merge with or into or consolidate with it; provided that (i) the Person surviving such merger shall be a wholly-owned Subsidiary of a Loan Party and into (ii) in the case of any such merger to which any Loan Party is a Foreign Subsidiaryparty, such Loan Party is the surviving Person;
(id) any Subsidiary CFC that is not a Loan Party may merge or consolidate with or into any other CFC that is not a Loan Party; and
(e) (i) a Subsidiary of any Borrower that is not a Loan Party and (iiother than any such Subsidiary the Equity Interests of which (or any portion thereof) any Subsidiary is subject to a Lien in favor of Administrative Agent) may liquidate liquidate, wind up, or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantoritself, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists all of the assets of such liquidating or would result therefrom, the dissolving Subsidiary are transferred to a Subsidiary of a Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized liquidating or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11dissolving, (ii) when any Restricted Subsidiary that is a Loan Party is merging with (other than any other PersonBorrower) or any of its wholly-owned Subsidiaries may liquidate, wind up, or dissolve itself, so long as all of the assets (including any interest in any Equity Interests) of such liquidating or dissolving Loan Party or Subsidiary are transferred to a Loan Party shall be the continuing that is not liquidating or surviving Person and dissolving, or (iii) no Domestic Subsidiary a Borrower (other than ▇▇▇▇▇ Mart) may merge with and into any other Person liquidate, wind up, or dissolve itself, so long as (A) all of the assets of such liquidating or dissolving Borrower are transferred to another Borrower that is not organized under the Laws liquidating or dissolving and (B) Administrative Agent shall have received not less than fifteen (15) Business Days prior written notice of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation dissolution or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05winding-up.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (Stein Mart Inc), Credit Agreement (Stein Mart Inc), Credit Agreement (Stein Mart Inc)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary other than the Borrower may merge or amalgamate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; Subsidiaries (provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, a Loan Party shall be the a continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into Person, as applicable, or the resulting entity shall succeed as a Foreign Subsidiarymatter of law to all of the Obligations of such Loan Party);
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) (A) any Restricted Subsidiary may liquidate or liquidate, dissolve or wind up, and (B) any Restricted Subsidiary may change its legal form form, in each case, if (x) the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders and (y) in the case of any Loan Party, the Collateral Agent’s continuing security interest in such Loan Party’s property or assets is not adversely affected and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then either (ix) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (iiy) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections Section 7.02 and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or amalgamate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) the Successor Company shall cause such amendments, supplements or other instruments to be executed, delivered, filed and recorded (and deliver a copy of same to the Administrative Agent and Collateral Agent) in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Collateral Agent on the Collateral owned by or transferred to the Successor Company, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the UCC of the relevant states, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (DE) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (EF) each mortgagor the Administrative Agent shall have received all documentation and other information about the Successor Company that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and (G) at the time of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, be in pro forma compliance with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Financial Covenants; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.026.10;
(f) the Borrower and the Restricted Subsidiaries Transactions may consummate the Merger; andbe consummated;
(g) so long as no Event of Default exists or would result therefrom, a merger, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected (other than pursuant to Section 7.05(e) and other than a Disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries); and
(h) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, in each case, by and among the Borrower and/or its Restricted Subsidiaries, the purpose of which is to effect the Reorganization.
Appears in 3 contracts
Sources: Credit Agreement (Travel & Leisure Co.), Credit Agreement (Wyndham Destinations, Inc.), Credit Agreement (Wyndham Destinations, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default has occurred and is continuing or would result therefrom:
(ai) any Restricted Subsidiary Loan Party (other than Parent or Borrower) may merge with (i1) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)any other Loan Party; provided that (x) the Borrower if such Loan Party merges with Parent or Borrower, Parent or Borrower, as applicable, shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii2) any one or more other Restricted SubsidiariesPerson; provided that that, with respect to the foregoing subclause (A) when any Restricted Subsidiary that is a 2), if such Loan Party owns an Unencumbered Pool Property and is merging with another Restricted Subsidiarynot the surviving entity, a Loan Party then such Property shall cease to be the continuing or surviving Person an Unencumbered Pool Property and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(iii) any Subsidiary that is not a Loan Party may merge with (1) any Loan Party so long as such Loan Party shall be the continuing or consolidate with surviving Person, or into (2) any other Person; provided that, with respect to the foregoing subclause (2), unless such Subsidiary that is a Wholly Owned Subsidiary and merges with another Wholly Owned Subsidiary, if such Subsidiary owns an Unencumbered Pool Property and is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that surviving entity, then such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous Property shall cease to the Lendersbe an Unencumbered Pool Property;
(ci) any Restricted Subsidiary Loan Party (other than Parent or Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower another Loan Party or to another Restricted Subsidiaryany other Person; provided that that, if the transferor in such Loan Party Disposes of any Unencumbered Pool Property to any Person other than a transaction is a GuarantorLoan Party, then (i) the transferee must either such Property shall cease to be the Borrower or a Guarantor (andan Unencumbered Pool Property, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted any Subsidiary which that is not a Loan Party may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Loan Party or another Subsidiary that is not a Loan Party;
(c) any Loan Party or Subsidiary that is not a Loan Party may Dispose of a Property owned by such Loan Party or Subsidiary in accordance with Sections 7.02 the ordinary course of business and 7.03for fair value; provided that, respectivelyunless such Disposition is made to another Loan Party or a Wholly Owned Subsidiary, if such Property is an Unencumbered Pool Property, then such Property shall cease to be an Unencumbered Pool Property;
(d) Parent or Borrower may merge or consolidate with another Person so long as no Default exists either Parent or would result therefromBorrower, as the case may be, is the surviving entity, shall remain in pro forma compliance with the covenants set forth in Section 8.14 below after giving effect to such transaction, and Borrower may merge with any other Person; provided that (i) obtains the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws prior written consent in writing of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto Required Lenders in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (their sole discretion; and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is not (and is not required to be) a Loan Party may liquidate or otherwise dissolve, provided that immediately prior to any such liquidation or dissolution and immediately thereafter and after giving effect thereto, no Default is merging with any other Person, a Loan Party or would be in existence. Nothing in this Section shall be deemed to prohibit the continuing sale or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under leasing of Property or portions of Property in the Laws ordinary course of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05business.
Appears in 3 contracts
Sources: Term Loan Agreement (Agree Realty Corp), Term Loan Agreement (Agree Realty Corp), Revolving Credit Agreement (Agree Realty Corp)
Fundamental Changes. MergeNeither the Lead Borrower nor any of its Restricted Subsidiaries shall merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary of the Lead Borrower (other than the Co-Borrower) may merge merge, amalgamate or consolidate with (i) the Lead Borrower (including a merger, the purpose of which is to reorganize the Lead Borrower into a new jurisdiction); provided that (x) the Lead Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted SubsidiariesSubsidiaries of the Lead Borrower (other than the Co-Borrower); provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and unless the resulting Investment made in connection with a Loan Party merging with a Non-Loan Party shall otherwise be a Restricted Investment permitted by Section 7.06 (Bother than Section 7.06(d)) no Domestic Subsidiary may merge with and into or a Foreign SubsidiaryPermitted Investment;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Lead Borrower determines in good faith that such action is in the best interests interest of the Lead Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary (other than the Co-Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Lead Borrower or to another Restricted SubsidiarySubsidiary (other than the Co-Borrower); provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if or the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Lead Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelypermitted by Section 7.06 (other than Section 7.06(d)) or a Permitted Investment;
(d) any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect a Restricted Investment permitted pursuant to Section 7.06 (other than Section 7.06(d)) or a Permitted Investment; provided that the continuing or surviving Person shall be a Restricted Subsidiary or the Lead Borrower;
(e) so long as no Default exists or would result therefrom, the Lead Borrower may merge with any other Person; provided that (i) the Lead Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Lead Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Lead Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (B) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement applicable Collateral Document confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (ED) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement, the Loan Documents and (FE) the Lead Borrower shall have delivered to the Administrative Agent an officerOfficer’s certificate and an opinion Certificate of counsel, each the Lead Borrower stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Lead Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Lead Borrower and the Restricted Subsidiaries may consummate the MergerTransactions; and
(g) so long as no Default exists or would result therefrom, any Restricted Subsidiary (other than the Co-Borrower) may effect a merger, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 3 contracts
Sources: Credit Agreement (Trinseo S.A.), Credit Agreement (Trinseo S.A.), Credit Agreement (Trinseo S.A.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) (i) any Restricted Subsidiary may merge with any Loan Party (iother than a Caribbean Party) the Borrower (including a merger, the purpose of which is to reorganize the Borrower such Loan Party into a new jurisdiction); provided that (xA) the Borrower such Loan Party shall be the continuing or surviving Person, (B) if a Borrower is a party to such merger, then such Borrower shall be the continuing and surviving Person and (yC) such merger does not result in the Borrower ceasing to Loan Party shall be incorporated under the Laws of the United States, any state thereof or the District of Columbia, Columbia or (ii) any one or more Restricted Subsidiary (other Restricted Subsidiariesthan a Loan Party that is a Domestic Subsidiary) may merge with any Caribbean Party (including a merger, the purpose of which is to reorganize such Loan Party into a new jurisdiction); provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan such Caribbean Party shall be the continuing or surviving Person, (B) if a Caribbean Borrower is a party to such merger, then such Caribbean Borrower shall be the continuing and surviving Person and (BC) no Domestic Subsidiary may merge with and into a Foreign Subsidiarysuch Caribbean Party shall be incorporated under the Laws of an Approved Caribbean Jurisdiction;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) (A) any Subsidiary may liquidate or dissolve or (B) any Borrower or any Subsidiary may change its legal form if the if, in each case, such Borrower or Subsidiary determines in good faith that such action is in the best interests of the such Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the a Borrower or to another Restricted Subsidiary; provided that (i) if the transferor in such a transaction is a GuarantorLoan Party which is not a Caribbean Party, then (i) the transferee must either be the Borrower or a Guarantor Loan Party (andother than a Caribbean Party), (ii) if the transferor in such a transaction is a Domestic SubsidiaryCaribbean Party, then the transferee must also be a Domestic SubsidiaryLoan Party and (iii) or (ii) if the transferor in such a transaction is a Loan Party, to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party or which is a Caribbean Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Holdings and each Borrower may merge or consolidate with any other Person; provided that (i) Holdings or such Borrower, as the Borrower case may be, shall be the continuing or surviving corporation entity or (ii) if the Person formed by or surviving any such merger or consolidation is not Holdings or such Borrower, as the Borrower case may be (any such Person, the “Successor BorrowerLoan Party”), (A) the Successor Borrower Loan Party shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofthereof (except that, in the case of a merger or consolidation of a Caribbean Borrower and not involving Holdings, the Lead Borrower, any other Borrower which is a Domestic Subsidiary, or any Loan Party which is a Domestic Subsidiary, the Successor Loan Party may be organized in an Approved Caribbean Jurisdiction), (B) the Successor Borrower Loan Party shall expressly assume all the obligations of Holdings or such Borrower, as the Borrower case may be, under this Agreement and the other Loan Documents to which Holdings or such Borrower, as the Borrower case may be, is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerLoan Party’s obligations under this Agreement, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor BorrowerLoan Party’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerLoan Party’s obligations under this Agreement, and (F) the Lead Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral other Loan Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, further that if the foregoing are satisfied, the Successor Borrower Loan Party will succeed to, and be substituted for, the Borrower applicable Loan Party under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Mergerapplicable; and
(gf) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 3 contracts
Sources: Credit Agreement (Performance Food Group Co), Credit Agreement (Performance Food Group Co), Credit Agreement (Performance Food Group Co)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction, so long as such new jurisdiction is the United States, any state thereof, the District of Columbia or any territory thereof); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (i) a Loan Party shall be the continuing or surviving Person or (ii) such surviving Person shall become a Loan Party and comply with Sections 6.11 and 6.13 substantially concurrently with such transaction (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiaryexcept as expressly provided in such Sections);
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) any Restricted Subsidiary may liquidate or dissolve or and (iii) any Restricted Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than 7.02(e)) and 7.03, respectively;
(d) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Collateral Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreementthe Loan Documents, and (F) the Borrower shall have delivered to the Administrative Collateral Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, and customary legal opinions reasonably satisfactory to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Collateral Agent; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary of the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (ii) when any such Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall would otherwise be the continuing or surviving Person and (iii) no Domestic permitted to be designated as an Unrestricted Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except immediately prior to the extent such merger is an Investment permitted under Section 7.02transaction;
(f) the Borrower and the Restricted Subsidiaries may consummate the MergerAcquisition, related transactions contemplated by the Purchase Agreement (and documents related thereto) and the Transactions and any Permitted Reorganization or IPO Reorganization Transaction; and
(g) so long as no Default exists or would result therefrom, the Borrower and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 or a Restricted Payment permitted pursuant to Section 7.06.
Appears in 3 contracts
Sources: Credit Agreement (AEVEX Corp.), Credit Agreement (AEVEX Corp.), Credit Agreement (AEVEX Corp.)
Fundamental Changes. Merge, dissolve, liquidate, amalgamate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, (other than in the case of clause (e) below) so long as no Event of Default would result therefrom:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the a Borrower (including a merger, the purpose of which is to reorganize the such Borrower into a new jurisdictionjurisdiction in any State of the United States); provided that (x) the such Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of such Borrower pursuant to documents reasonably acceptable to the Administrative Agent and such Borrower (yor, if not such Borrower, the surviving Person) such merger does not result in the Borrower ceasing to shall be incorporated a corporation or a limited liability company organized under the Laws laws of the United States, any state thereof or the District of Columbia, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that (Ax) when any Restricted Subsidiary that is not a Controlled Foreign Subsidiary or a FSHCO may not merge with any Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, Controlled Foreign Subsidiary or a Loan Party FSHCO if such Controlled Foreign Subsidiary or such FSHCO shall be the continuing or surviving Person and (y) when any Guarantor is merging with another Subsidiary that is not a Loan Party (A) the Guarantor shall be the continuing or surviving Person, (B) no Domestic to the extent constituting an Investment, such Investment must be a Permitted Investment or Indebtedness of a Subsidiary may merge which is not a Loan Party in accordance with Section 7.01, respectively and into (C) to the extent constituting a Foreign SubsidiaryDisposition, such Disposition must be permitted hereunder;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary (other than a Borrower) may liquidate or dissolve dissolve, or any Borrower or any Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Parent Borrower determines in good faith that such action is in the best interests interest of the Borrower Holdings and its Subsidiaries and if is not materially disadvantageous to the LendersLenders in any material respect (it being understood that in the case of any dissolution of a Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Subsidiary that is a Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the any Borrower or to another Restricted any Subsidiary; provided that if the transferor in such a transaction is a Borrower or a Guarantor, then (i) the transferee must either be the a Borrower or a Guarantor (and, if in the transferor is same jurisdiction or a Domestic Subsidiary, different jurisdiction reasonably satisfactory to the transferee must also be a Domestic Subsidiary) or Administrative Agent and (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03Section 7.01, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementBorrowers may Dispose of all or substantially all of their assets (upon voluntary liquidation or otherwise) to any other Loan Party;
(ed) so long as no Default exists any Subsidiary (other than a Borrower) may merge, amalgamate or would result therefromconsolidate with, any Restricted Subsidiary may merge with or dissolve into, any other Person in order to effect an Investment permitted pursuant to Section 7.02Permitted Investment; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiaryshall, which together with each of its Restricted Subsidiariesto the extent subject to the terms hereof, shall have complied with the requirements of Section 6.11, 6.12 and (ii) when any Restricted Subsidiary that is to the extent constituting an Investment, such Investment must be a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person Permitted Investment and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent constituting a Disposition, such merger is an Investment Disposition must be permitted under Section 7.02hereunder;
(e) [reserved];
(f) the Borrower and the Restricted Subsidiaries any Subsidiary (other than a Borrower) may consummate the Merger; and
(g) so long as no Default exists merge, dissolve, liquidate, amalgamate, consolidate with or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is into another Person in order to effect a Disposition permitted pursuant to Section 7.057.04 (other than Dispositions permitted by Section 7.03); and
(g) any Permitted Investment may be structured as a merger, consolidation or amalgamation of a Subsidiary that is not a Borrower.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Maravai Lifesciences Holdings, Inc.), First Lien Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, merger the purpose of which is to reorganize the Borrower into in a new jurisdictionState within the United States or the District of Columbia); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and Party, (ii) (A) any Subsidiary may liquidate or dissolve dissolve, or (B) any Restricted Subsidiary may change its legal form form, in each case, if in either case, the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or Loan Party or, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections Section 7.02 (other than Section 7.02(f)) and Section 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreementcorporation;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.027.02 (other than Section 7.02(f); provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries SHL Acquisition may consummate the Merger; andbe consummated;
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 (other than Section 7.05(e)), may be effected; and
(h) any merger, dissolution, liquidation, consolidation with or into another Person, or Disposition arising from any step or transaction set out in the Structure Memorandum to implement the SHL Acquisition and Refinancing; and
(i) any such merger, liquidation, consolidation or Disposition as may be necessary (as reasonably determined by the Borrower) to effect a Reorganization may be consummated.
Appears in 2 contracts
Sources: Credit Agreement (CEB Inc.), Credit Agreement (CEB Inc.)
Fundamental Changes. MergeEnter into any merger, dissolveconsolidation, reorganization, or amalgamation, or liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation or dissolution), or Dispose of (whether in one transaction or in a series of transactions) of, all or substantially all of its assets (whether now owned property or hereafter acquired) to or in favor of any Personbusiness, except that:
(a) any Restricted Subsidiary of the Borrower may merge with be merged, consolidated or be amalgamated (i) with or into the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United Statescorporation), any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and (provided that if not materially disadvantageous only one party to such transaction is a Subsidiary Guarantor, the continuing or surviving corporation shall be a Subsidiary Guarantor) or (iii) subject to Section 7.7(f) (to the Lendersextent applicable), with or into any other Restricted Subsidiary;
(cb) any Restricted Subsidiary of the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any Subsidiary Guarantor or, subject to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then Section 7.7(f) (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investmentapplicable), such Investment must be a permitted Investment in or Indebtedness of a any other Restricted Subsidiary;
(c) any Restricted Subsidiary which that is not a Loan Party may (i) merge or consolidate with or into any Restricted Subsidiary that is not a Loan Party or (ii) dispose of all or substantially all of its assets (including any Disposition that is in accordance with Sections 7.02 and 7.03, respectivelythe nature of a liquidation) to (x) another Restricted Subsidiary that is not a Loan Party or (y) to a Loan Party;
(d) so long as no Default exists any Restricted Subsidiary may enter into any merger, consolidation or would result therefrom, the Borrower may merge similar transaction with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the another Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing to effect a transaction permitted under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementSection 7.7;
(e) so long as no Default exists or would result therefrom, any Restricted Immaterial Subsidiary may merge with any other Person in order to effect an Investment liquidate or dissolve voluntarily;
(f) transactions permitted pursuant to under Section 7.02; provided that (i) the continuing or surviving Person 7.5 shall be a Restricted Subsidiarypermitted; and
(g) such merger, which together with each of its Restricted Subsidiariesconsolidation, shall have complied with reorganization or amalgamation does not result in the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall Borrower ceasing to be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except Columbia. Notwithstanding anything in this Section 7.4 to the extent such merger is contrary, in no event will any Loan Party, (directly or indirectly through one or a series of transactions) sell, transfer, assign or grant an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists exclusive license with respect to or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is contribute any material Intellectual Property to effect a Disposition permitted pursuant to Section 7.05any non-Loan Party.
Appears in 2 contracts
Sources: Credit Agreement (2U, Inc.), Credit Agreement (2U, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) (i) any Restricted Subsidiary may merge or amalgamate with any Loan Party (iother than a Caribbean Party) (including a merger or amalgamation, the purpose of which is to reorganize such Loan Party into a new jurisdiction); provided that (A) a Loan Party shall be the continuing or surviving Person, (B) if a Borrower is a party to such merger or amalgamation, then such Borrower shall be the continuing and surviving Person, (C) if Holdings, the Lead Borrower, a Loan Party which is a Domestic Subsidiary, or a Domestic Subsidiary is party to such merger or amalgamation, then Holdings, the Lead Borrower, such Loan Party, or a Domestic Subsidiary will be the continuing or surviving Person, and (D) if a Loan Party which is a Canadian Subsidiary is party to such merger or amalgamation, and none of Holdings, the Lead Borrower, any Loan Party which is a Domestic Subsidiary, nor any Domestic Subsidiary is party to such merger or amalgamation, then such Canadian Subsidiary which is a Guarantor shall be the continuing or surviving Person or (ii) any Restricted Subsidiary (other than a Loan Party that is a Domestic Subsidiary or a Canadian Subsidiary) may merge with any Caribbean Party (including a merger, the purpose of which is to reorganize the Borrower such Loan Party into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (yA) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Caribbean Party shall be the continuing or surviving Person, (B) if a Caribbean Borrower is a party to such merger, then such Caribbean Borrower shall be the continuing and surviving Person and (BC) no Domestic Subsidiary may merge with and into a Foreign Subsidiarysuch Caribbean Party shall be incorporated under the Laws of an Approved Caribbean Jurisdiction;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) (A) any Subsidiary (other than any Borrower) may liquidate or dissolve or (B) any Borrower or any Subsidiary may change its legal form if the if, in each case, such Borrower or Subsidiary determines in good faith that such action is in the best interests of the such Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the a Borrower or to another Restricted Subsidiary; provided that (i) if the transferor in such a transaction is a GuarantorLoan Party which is not a Caribbean Party, then (i) the transferee must either be the Borrower or a Guarantor Loan Party (andother than a Caribbean Party), (ii) if the transferor in such a transaction is a Domestic SubsidiaryCaribbean Party, then the transferee must also be a Domestic SubsidiaryLoan Party and (iii) or (ii) if the transferor in such a transaction is a Loan Party, to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party or which is a Caribbean Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Holdings and each Borrower may merge or consolidate with any other Person; provided that (i) Holdings or such Borrower, as the Borrower case may be, shall be the continuing or surviving corporation entity or (ii) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not Holdings or such Borrower, as the Borrower case may be (any such Person, the “Successor BorrowerLoan Party”), (A) the Successor Borrower Loan Party shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofthereof (except that, in the case of a merger, amalgamation or consolidation of a Caribbean Borrower and not involving Holdings, the Lead Borrower, any other Borrower which is a Domestic Subsidiary, or any Loan Party which is a Domestic Subsidiary, the Successor Loan Party may be organized in an Approved Caribbean Jurisdiction), (B) the Successor Borrower Loan Party shall expressly assume all the obligations of Holdings or such Borrower, as the Borrower case may be, under this Agreement and the other Loan Documents to which Holdings or such Borrower, as the Borrower case may be, is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerLoan Party’s obligations under this Agreement, (D) each GuarantorLoan Party, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to the applicable Security Agreement confirmed that its obligations thereunder shall apply to the Successor BorrowerLoan Party’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor BorrowerLoan Party’s obligations under this Agreement, and (F) the Lead Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral other Loan Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, further that if the foregoing are satisfied, the Successor Borrower Loan Party will succeed to, and be substituted for, the Borrower applicable Loan Party under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Mergerapplicable; and
(gf) so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 2 contracts
Sources: Credit Agreement (Performance Food Group Co), Credit Agreement (Performance Food Group Co)
Fundamental Changes. MergeExcept with the prior written consent of Agent, dissolveeach Loan Party shall not, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all and shall not permit any of its assets (whether now owned Subsidiaries to, directly or hereafter acquired) to or in favor of any Personindirectly, except that:
(a) conduct business under any Restricted fictitious name; (b) change its tax, charter or other organizational identification number; (c) with respect to a Loan Party, change its form or state of organization; (d) suspend operations, wind up, liquidate or dissolve (other than Permitted Dispositions and except that any Loan Party (other than a Borrower) or Subsidiary may merge with (i) the Borrower (including a mergersuspend operations, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that wind up, liquidate or dissolve if (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Administrative Borrower determines in good faith that (i) such action suspension of operations, winding up, liquidation or dissolution is in the best interests of the Borrower Loan Parties and its Subsidiaries and if (ii) is not materially disadvantageous to the Lenders;
Lenders (ctaken as a whole) and (y) a Borrower or any Restricted wholly-owned Subsidiary may Dispose of all or substantially all of its receives the assets (upon voluntary liquidation if any) of the relevant wound up, liquidated or otherwise) to the Borrower or to another Restricted dissolved Subsidiary); provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (iie) to the extent constituting an Investmententer into any merger, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that reorganization, recapitalization, division or plan of division, or reclassify its Guarantee shall apply to the Successor Borrower’s obligations under this AgreementEquity Interests, (D) each Guarantor, unless it is the other party to such except for Permitted Investments and any merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, among Loan Parties and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)their Subsidiaries; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Personthat, a Loan Party shall must be the continuing or surviving Person and entity of any such merger to which it is a party (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent unless such merger is an Investment permitted under Section 7.02;
with a Borrower, in which case a Borrower must be the surviving entity). Each Loan Party shall give Agent (fi) the Borrower not less than thirty (30) days prior written notice of any change of its name, type of entity or state of organization and the Restricted Subsidiaries may consummate the Merger; and
(gii) so long as notice of any change of any of its non-Loan Party Subsidiaries’ names, their type of entity or their state of organization no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05later than thirty (30) days following any such change.
Appears in 2 contracts
Sources: Credit Agreement (Green Thumb Industries Inc.), Credit Agreement (Green Thumb Industries Inc.)
Fundamental Changes. (a) Merge, dissolve, liquidate, combine or consolidate with or into another any Person, or Dispose liquidate or wind up or dissolve itself (or suffer any liquidation or dissolution), or sell, lease, assign, transfer or otherwise dispose of, all or substantially all of (its Property, business or assets, whether in one a single transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge with for (i) the Borrower (including mergers or consolidations of a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)wholly-owned Subsidiary with another wholly-owned Subsidiary; provided that (x) if any party to any such transaction is Borrower, the Borrower surviving entity of such transaction shall be Borrower; and if any party to any such transaction is an Obligor that is not Borrower, the continuing or surviving Person and (y) entity of such merger does not result in the Borrower ceasing to transaction shall be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or an Obligor; (ii) mergers or consolidations of a wholly-owned Subsidiary into Borrower; (iii) sales, leases, transfers or other dispositions by a Subsidiary (the “Transferring Subsidiary”) of any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation liquidation, winding up or dissolution (which shall be permitted so long as such Subsidiary’s assets are disposed of in accordance with this clause (iii)) or otherwise) to the Borrower or to another Restricted any other Subsidiary; provided that if the transferor in such a transaction Transferring Subsidiary is a Subsidiary Guarantor, then (i) the transferee must either such sale, lease, transfer or disposition shall be the Borrower or a Guarantor (and, to an Obligor and if the transferor such Transferring Subsidiary is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an InvestmentSubsidiary of Borrower, such Investment must sale, lease, transfer or disposition shall be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 to Borrower; and 7.03, respectively;(iv) Permitted Acquisitions.
(db) so long as no Default exists Solely in the case of an Obligor, change its name or would result therefromconduct business under any fictitious name; change its tax, the Borrower may merge with any charter or other Personorganizational identification number; provided that change its form or state of organization, except in each case under this clause (i) the Borrower shall be the continuing or surviving corporation or (iib) if the Person formed by or surviving any (I) such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, Obligor shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, given Agent ten (D10) each Guarantor, unless it is the other party to such merger or consolidation, Business Days prior written notice thereof and (II) Agent shall have taken all steps reasonably deemed necessary by a supplement Agent to maintain the Security Agreement confirmed that its obligations thereunder shall apply to validity, enforceability, perfection and priority of Agent’s security interest in the Successor Borrower’s obligations under this AgreementCollateral of such Obligor, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, and Obligor shall have executed and delivered such documents, instruments and agreements requested by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05connection therewith.
Appears in 2 contracts
Sources: Loan Agreement (School Specialty Inc), Loan Agreement (School Specialty Inc)
Fundamental Changes. Merge(a) No Loan Party will, dissolvenor will it permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that may merge into or liquidate or dissolve into, or consolidate with, the Borrower in a transaction in which the surviving entity is not the Borrower, (ii) any Subsidiary may merge into or liquidate or dissolve into, or consolidate with, any Subsidiary in a transaction in which the surviving entity is a Subsidiary and, if any party to such merger is a Loan Party, is or becomes a Loan Party within thirty (30) days (or such longer period as the Administrative Agent may merge reasonably agree) of such merger, liquidation or consolidate with or into any other Subsidiary that is not a Loan Party and consolidation, (iiiii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders;
Secured Parties; provided, that any such merger involving a wholly-owned Subsidiary merging into a non-wholly-owned Subsidiary (cwith such non-wholly-owned Subsidiary surviving such merger) shall not be permitted unless also permitted under Section 6.04, (iv) any Restricted Subsidiary may Dispose merge into or liquidate or dissolve into, or consolidate with, any other Subsidiary in a transaction in which the surviving entity is a direct or indirect wholly-owned Subsidiary in connection with the consummation of all or substantially all of its assets (upon voluntary a Specified Acquisition and, if any party to such a merger, liquidation or otherwisedissolution is a Loan Party, the surviving entity shall be or become a Loan Party within thirty (30) to days (or such longer period as the Administrative Agent may reasonably agree) of such merger, liquidation or dissolution, and (v) the Borrower or to another Restricted Subsidiary; provided that if the transferor in such any Subsidiary may consummate any Investment permitted by Section 6.04 (whether through a transaction is a Guarantormerger, then (i) the transferee must either be the Borrower consolidation or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Personotherwise); provided that (iA) the surviving entity (if the Borrower is not a party to such transaction) shall be a Subsidiary and (B) if the Borrower is a party to such transaction, the Borrower shall be the continuing or surviving corporation or entity.
(iib) if The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the Person formed type conducted by or surviving any such merger or consolidation is not the Borrower (any such Person, and its Subsidiaries on the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws date of the United States, any state thereof, the District execution of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto businesses ancillary, incidental, complementary or reasonably related thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05reasonable extensions thereof.
Appears in 2 contracts
Sources: Credit Agreement (Mimecast LTD), Credit Agreement (Mimecast LTD)
Fundamental Changes. MergeParent will not, dissolveand will not permit any Restricted Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(a) any Restricted Subsidiary Person may merge or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (xi) the Borrower shall be the continuing or surviving Person and (yii) no Default shall be continuing after giving effect to such merger does not result in transaction;
(b) any Person (other than the Borrower ceasing to Borrower) may merge or consolidate with Parent; provided that (i) Parent shall be incorporated under the Laws of the United States, any state thereof continuing or the District of Columbia, or surviving Person and (ii) no Default shall be continuing after giving effect to such transaction;
(c) any Restricted Subsidiary (other than the Borrower) may merge or consolidate with any one or more Restricted Subsidiaries (other Restricted Subsidiariesthan the Borrower); provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic shall be a Subsidiary may merge with and into a Foreign SubsidiaryLoan Party;
(id) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any (other Subsidiary that is not a Loan Party and (iithan the Borrower) any Subsidiary may liquidate or dissolve or change its legal form or redomicile (in the case of a Subsidiary Loan Party, to a jurisdiction within the United States) if the Borrower determines in good faith that such action is in the best interests of the Borrower Parent and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(ce) any Restricted Subsidiary may Dispose make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of Disposition to a Restricted Subsidiary which that is not a Loan Party Party, the transferor shall receive fair market value as consideration and any non-cash consideration received in accordance with Sections 7.02 and 7.03, respectivelyrespect thereof shall be an Investment permitted by Section 6.04;
(df) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary (other than the Borrower) may merge merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.026.04; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, Sections 5.11 and 5.12 (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent applicable) and if the other party to such merger transaction is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Mergernot a Loan Party, no Default shall be continuing after giving effect to such transaction; and
(g) so long as no Default exists or would result therefrom, any Restricted Subsidiary (other than the Borrower) may effect a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is amalgamation to effect a Disposition permitted pursuant to Section 7.056.05; provided that if the other party to such transaction is not a Loan Party, no Default shall be continuing after giving effect to the transaction.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (NorthStar Asset Management Group Inc.), Revolving Bridge Credit Agreement (NorthStar Asset Management Group Inc.)
Fundamental Changes. Merge(a) Enter into any merger, dissolveconsolidation or amalgamation, or liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation or dissolution), or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned property or hereafter acquired) to or in favor of any Personbusiness, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party of the Borrower may merge be merged or consolidate consolidated with or into the Borrower or with or into any other Subsidiary that is not a Loan Party other than a Limited Guarantor, and any Non-Loan Party may be merged or consolidated with or into any other Non-Loan Party;
(ii) any Subsidiary Loan Party (other than the Borrower) may liquidate Dispose of any or dissolve or change all of its legal form if assets to the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lendersor any other Loan Party other than a Limited Guarantor (upon voluntary liquidation or otherwise);
(ciii) any Restricted Subsidiary Non-Loan Party may Dispose of all any or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (andLoan Party, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) another Non-Loan Party;
(iv) any Group Member may consummate any transaction to the extent constituting it would be permitted as an InvestmentInvestment under Section 7.7;
(v) any Group Member may Dispose of assets to the extent permitted by Section 7.5;
(vi) any Subsidiary of the Borrower may be liquidated, wound up or dissolved; provided that such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not Subsidiary’s assets are transferred to a Loan Party in accordance with Sections 7.02 and 7.03other than a Limited Guarantor or, respectively;if such Subsidiary is a Non-Loan Party, to a Loan Party or a Non-Loan Party; and
(dvii) so long as no Default exists any Limited Guarantor or would result therefroman Excluded Broker-Dealer may dispose of any or all of its assets to or merge or consolidate with and into NFP Securities, the Borrower may merge with any other Person; Inc. (provided that (i) the Borrower NFP Securities, Inc. shall be the continuing or surviving corporation corporation); provided, however, that in any merger or consolidation permitted by this Section 7.4 involving the Borrower, the Borrower shall be the surviving party, and in any merger or consolidation permitted by this Section 7.4 involving any other Loan Party and not the Borrower, the surviving party shall be a Loan Party.
(b) Without limiting the foregoing or any other provisions of this Agreement, (i) elect to make distributions described in Section 12.01(b) of the 2007 Convertible Notes Indenture or in Section 10.01(b) of the 2010 Convertible Notes Indenture or any similar provision of other convertible notes which would permit the holders thereof to surrender its Indebtedness for conversion, or (ii) if the Person formed by or surviving elect to engage in any such merger or consolidation is not the Borrower (any such Person, the event which constitutes a “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing Fundamental Change” under the laws 2007 Convertible Notes Indenture or under the 2010 Convertible Notes Indenture or a similar event described under any other Indebtedness which would permit the holders thereof to surrender such Indebtedness for conversion or permit the holders thereof to require the repurchase of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed Indebtedness; provided that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicableless than $15,000,000 of aggregate principal amount of Indebtedness would be affected, with the opinions delivered with respect no violation of this Section 7.4(b) will be deemed to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05occurred.
Appears in 2 contracts
Sources: Credit Agreement (National Financial Partners Corp), Credit Agreement (National Financial Partners Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its the assets (whether now owned or hereafter acquired) of the Borrower and its Restricted Subsidiaries, taken as a whole, to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary Relevant Party may merge or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)one or more Loan Parties; provided that (x) if the Borrower is a party to such merger or consolidation, it shall be the continuing or surviving Person Person, and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, otherwise a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(ib) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with the Borrower or into any other Restricted Subsidiary; provided that if the Borrower or a Restricted Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate is a party to such merger or dissolve consolidation, it shall be the continuing or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenderssurviving Person;
(c) any Restricted Subsidiary Loan Party may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then Loan Party;
(id) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a any Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any Restricted Subsidiary; and
(de) so long as no Default exists or would result therefrom, each of the Borrower and any of its Restricted Subsidiaries may merge into or consolidate with any Person other Personthan the Borrower or any of its Subsidiaries; provided provided, however, that in each case, immediately after giving effect thereto (i) in the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving case of any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted forparty, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) is the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iiiii) no Domestic Subsidiary may merge with and into in the case of any other Person that merger to which any Relevant Party (other than the Borrower) is not organized under a party, such Relevant Party is the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05surviving Person.
Appears in 2 contracts
Sources: Credit Agreement (Western Refining Logistics, LP), Credit Agreement (Western Refining Logistics, LP)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that, so long as no Default or Dispose Event of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) Default shall have occurred and be continuing prior to or in favor of immediately after giving effect to any Person, except thataction described below or would result therefrom:
(a) any Restricted Subsidiary which is not a Loan Party may merge or consolidate with (i) the Borrower (including a mergerLoan Party, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower Loan Party shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; Subsidiaries which are not Loan Parties, provided that (A) when any Restricted wholly-owned Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted wholly-owned Subsidiary, ;
(b) any Subsidiary which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging may merge into or consolidate with any other PersonSubsidiary which is a Loan Party; provided that in any merger involving a Borrower, a Loan Party Borrower shall be the continuing or surviving Person;
(c) in connection with a Permitted Acquisition, any Subsidiary of a Loan Party may merge with or into or consolidate with any other Person or permit any other Person to merge with or into or consolidate with it; provided that (i) the Person surviving such merger shall be a wholly-owned Subsidiary of a Loan Party and such Person shall become a Loan Party to the extent required in accordance with the provisions of Section 6.11 hereof, and (iiiii) in the case of any such merger to which any Loan Party is a party, such Loan Party is the surviving Person;
(d) any Subsidiary may liquidate or dissolve into its parent entity to the extent the Lead Borrower reasonably determines that the continued existence of such Subsidiary is no Domestic longer in the best interests of the Parent and its Subsidiaries; and
(e) in connection with a Permitted Disposition of a Subsidiary, such Subsidiary may merge with and or consolidate into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Subsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Sears Hometown & Outlet Stores, Inc.), Term Loan Credit Agreement (Sears Hometown & Outlet Stores, Inc.)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge or amalgamate with (i) the Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the Borrower into in a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person Person, and (y) such merger or amalgamation does not result in the Borrower ceasing to be incorporated under the Laws of the United States, Canada or any state province thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and Party, (ii) (A) any Subsidiary may liquidate or dissolve or dissolve, (B) any Subsidiary may change its legal form form, in each case, if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge or amalgamate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation amalgamation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia Canada or any province or territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidationamalgamation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidationamalgamation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidationamalgamation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation amalgamation and such supplement to this Agreement or any Collateral other Loan Document comply with this Agreement Agreement; together with such other documents described in paragraph (and, with respect to such opinion d) of counsel, otherwise substantially consistent, to the extent reasonably appropriate definition of “Collateral and applicable, with the opinions delivered Guarantee Requirement” with respect to the Successor Borrower on that the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as Administrative Agent may be appropriate); provided, further, reasonably request provided further that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) so long as no Default exists or would result therefrom and no material assets have been transferred to such Subsidiaries from the Borrower and or any Subsidiary thereof from the Restricted Closing Date to the date of such dissolution or liquidation, the Subsidiaries listed on Schedule 7.04(f) may consummate be dissolved or liquidated;
(g) the MergerAcquisition may be consummated; and
(gh) so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected.
Appears in 2 contracts
Sources: First Lien Credit Agreement (SMART Technologies Inc.), Second Lien Credit Agreement (SMART Technologies Inc.)
Fundamental Changes. MergeNeither Parent nor any of its Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge or consolidate with (i) the Parent or any other Borrower (including a merger, the purpose of which is to reorganize the such Borrower into a new jurisdictionjurisdiction or to form or collapse a holding company structure); provided provided, that (x) the Parent or such other Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing shall continue to be incorporated organized under the Laws laws of the United States, States or any state thereof or the District of Columbia, thereof; or (ii) any one ii)one or more other Restricted SubsidiariesSubsidiaries that is not a Borrower; provided provided, that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted SubsidiarySubsidiary under this clause (a), a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into (x) any other Subsidiary that is not a Loan Party or (y) any other Subsidiary that is a Loan Party; provided that the Loan Party shall be the continuing or surviving Person; and (ii) any Subsidiary may liquidate liquidate, wind-up or dissolve or change into its legal form parent if the Borrower Parent determines in good faith that such action is in the best interests interest of the Borrower Parent and its Subsidiaries as a whole and if is not materially disadvantageous to the Lenders;
(c) Parent or any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Parent or to another any Restricted Subsidiary; provided provided, that if the transferor in such a transaction is a Borrower or a Guarantor, then (i) the transferee must either be the Parent, a Borrower or a Guarantor (and; provided, if the transferor is a Domestic Subsidiaryfurther, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, that at least one Borrower shall remain after such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelytransaction;
(d) so long as no Event of Default exists or would result therefrom, the Parent or any other Borrower may merge or consolidate with any other Person; provided provided, that (i) the Borrower i)Parent or such other Borrower, as applicable, shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Company”) is not Parent or such other Borrower”), (A) the A)the Successor Borrower Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Parent or such other Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of a Successor Company for a Borrower, each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee and its pledges and other obligations under the Collateral Documents shall apply to the Successor BorrowerCompany’s obligations under this the Loan Documents, including, to the extent reasonably requested by the Administrative Agent, by executing amendments or supplements to the Security Agreement, any Mortgage and any other Collateral Documents, and (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower Parent shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary certificates and other assumptions and qualifications documentation as may be appropriate)reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the applicable Borrower under this Agreement;
(e) so long as no Event of Default exists or would result therefrom, a Guarantor may merge or consolidate with any other Person; provided, that (i) such Guarantor shall be the continuing or surviving corporation or (ii) if the Successor Company is not such Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof and (B) the Successor Company shall expressly assume all the obligations of such Guarantor under this Agreement and the other Loan Documents to which such Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Guarantor under this Agreement;
(f) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary other than a Borrower may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger7.05; and
(g) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary other than a Borrower may consummate a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.04.
Appears in 2 contracts
Sources: Credit Agreement (Uniti Group Inc.), Credit Agreement (Uniti Group Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that, so long as no Default or Dispose Event of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) Default shall have occurred and be continuing prior to or in favor of immediately after giving effect to any Person, except thataction described below or would result therefrom:
(a) any Restricted Subsidiary which is not a Loan Party may merge with (i) the Borrower (including a mergerLoan Party, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower Loan Party shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; Subsidiaries which are not Loan Parties, provided that (A) when any Restricted wholly-owned Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party the wholly-owned Subsidiary shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign SubsidiaryPerson;
(ib) any Subsidiary that which is not a Loan Party may merge or consolidate with or into any other Subsidiary that which is not a Loan Party and (ii) or into a Borrower, provided that in any Subsidiary may liquidate merger involving a Borrower, a Borrower shall be the continuing or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenderssurviving Person;
(c) in connection with a Permitted Acquisition, any Restricted Subsidiary of a Loan Party may merge with or into or consolidate with any other Person or permit any other Person to merge with or into or consolidate with it; provided that (i) the Person surviving such merger shall be a wholly-owned Subsidiary of a Loan Party and such Person shall become a Loan Party in accordance with the provisions of Section 6.11 hereof, and (ii) in the case of any such merger to which any Loan Party is a party, such Loan Party is the surviving Person;
(d) any Loan Party or any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted SubsidiaryLoan Party; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or and (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted any Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
may Dispose of all or substantially all of its assets (dupon voluntary liquidation or otherwise) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation to another Subsidiary which is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other a Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementParty;
(e) so long any Guarantor (subject to compliance with Section 6.13, as no Default exists applicable) or would result therefrom, any Restricted Subsidiary which is not a Loan Party may merge with any other Person liquidate or dissolve or change its legal form if the Parent determines in order good faith that such action is in the best interests of the Parent and its Subsidiaries and is not materially disadvantageous to effect an Investment permitted pursuant to Section 7.02the Lenders; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, and (ii) when subject to compliance with Section 6.13, as applicable, any Restricted Subsidiary Borrower may change its legal form if the Parent determines in good faith that such action is a Loan Party is merging with any other Person, a Loan Party shall be in the continuing or surviving Person best interests of the Parent and (iii) no Domestic Subsidiary may merge with its Subsidiaries and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except materially disadvantageous to the extent such merger is an Investment permitted under Section 7.02;Lenders; and
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation amalgamation or Dispositionconsolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Permitted Disposition, shall be permitted.
Appears in 2 contracts
Sources: Credit Agreement (Lumber Liquidators Holdings, Inc.), Credit Agreement (Lumber Liquidators Holdings, Inc.)
Fundamental Changes. MergeThe Borrower will not, dissolveand will not permit any Restricted Subsidiary to, liquidate, merge into or consolidate or amalgamate with or into another any other Person, or Dispose of permit any other Person to merge into or consolidate with it, or liquidate or dissolve (whether including, in one transaction or in each case, pursuant to a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonDivision), except that:
(a) any Restricted Subsidiary may merge merge, consolidate or amalgamate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower, provided that the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (iiy) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging, consolidating or amalgamating with another Restricted Subsidiary either (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and shall be a Subsidiary Loan Party or (B) no Domestic if the continuing or surviving Person is not a Subsidiary may merge with and into a Foreign SubsidiaryLoan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is permitted under Section 6.04;
(ib) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then either (iA) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or Loan Party, (iiB) to the extent constituting an Investment, such Investment must be a permitted an Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party permitted by Section 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for Fair Market Value and any promissory note or other non-cash consideration received in accordance with Sections 7.02 and 7.03, respectivelyrespect thereof is an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;
(d) so long as no Default exists or would result therefrom, the Borrower may merge merge, amalgamate or consolidate with any other Person; provided that (iA) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A1) the a Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B2) the a Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (C3) each GuarantorLoan Party other than the Borrower, unless it is the other party to such merger or consolidation, amalgamation or consolidation, shall have by a supplement reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Guaranty confirmed Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the a Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F4) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that (x) if such Person is not a Loan Party, no Event of Default exists after giving effect to such merger, amalgamation or consolidation and (y) if the foregoing requirements are satisfied, the a Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided, further, that the Borrower agrees to use commercially reasonable efforts to provide any documentation and other information about such Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act and the Beneficial Ownership Regulation;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.026.04; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary that, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person Sections 5.11 and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.025.12;
(f) the Borrower and the any Restricted Subsidiaries Subsidiary may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, effect a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is amalgamation to effect a Disposition permitted pursuant to Section 7.056.05;
(g) [reserved]; and
(h) the Borrower and its Subsidiaries may undertake or consummate any Tax Restructuring or IPO Reorganization Transactions and any transaction related thereto or contemplated thereby.
Appears in 2 contracts
Sources: Credit Agreement (Entrata, Inc.), Credit Agreement (Entrata, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction, so long as such new jurisdiction is the United States, any state thereof, the District of Columbia or any territory thereof); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (i) a Loan Party shall be the continuing or surviving Person or (ii) such surviving Person shall become a Loan Party and comply with Sections 6.11 and 6.13 substantially concurrently with such transaction (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiaryexcept as expressly provided in such Sections);
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) any Restricted Subsidiary may liquidate or dissolve or and (iii) any Restricted Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than 7.02(e)) and 7.03, respectively;
(d) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Collateral Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.Documents,
Appears in 2 contracts
Sources: Credit Agreement (AEVEX Corp.), Credit Agreement (AEVEX Corp.)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a1) the Borrower may merge or consolidate with any Parent Company or any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that that:
(xa) the Borrower shall be the continuing or surviving Person and Person;
(yb) such merger or consolidation does not result in the Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia, ; and
(c) in the case of a merger or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be consolidation of the continuing or surviving Person and (B) no Domestic Subsidiary may merge Borrower with and into a Foreign Subsidiaryany Parent Company;
(i) such Parent Company shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement;
(ii) such Parent Company shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower; and
(iii) no Event of Default exists at such time or after giving effect to such transaction;
(a) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party;
(iib) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party; provided that a Loan Party shall be the continuing or surviving Person;
(c) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party or Restricted Subsidiary in another jurisdiction in the United States will be permitted; and
(d) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided that the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or the definition of “Permitted Investments”;
(c3) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in Restricted Subsidiary disposing of such a transaction assets is a Guarantor, then (i) the transferee must either such assets shall be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) disposed of to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with or such disposition shall otherwise be permitted under Sections 7.02 and 7.03, respectively7.04 or 7.05 or the definition of “Permitted Investments”;
(d4) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) the Borrower shall be the continuing or surviving corporation or (iib) if the Person formed by or surviving any such merger or consolidation is not the Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the a “Successor Borrower”), ):
(Ai) the Successor Borrower shall will:
(A) be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof, Columbia;
(B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent and the Borrower; and
(C) deliver to the Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent;
(ii) substantially contemporaneously with such transaction (or at a later date as agreed by the Administrative Agent);
(A) each Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Guaranty confirmed that (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guarantee shall apply to Guaranty of the Obligations (including the Successor Borrower’s obligations under this Agreement, );
(DB) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have will, by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply (or in another form reasonably satisfactory to the Successor Borrower’s obligations under this AgreementAdministrative Agent), confirm its grant or pledge thereunder; and
(EC) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have will, by an amendment to or restatement of the applicable Mortgage confirmed (or other instrument reasonably satisfactory to the Collateral Agent and the Borrower), confirm that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and ;
(Fiii) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate requested by the Administrative Agent, the Administrative Agent shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and applicableother information in respect of the Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; and
(iv) after giving pro forma effect to such incurrence, the Borrower would be in compliance with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability Total Net Leverage Ratio test set forth in clause (A) of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)definition of Permitted Ratio Debt; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e5) so long as no Default exists or would result therefrom, [reserved];
(6) any Restricted Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect an a Permitted Investment or other investment permitted pursuant to Section 7.027.05; provided that, solely in the case of a merger or consolidation involving a Loan Party, no Event of Default exists or would result therefrom; provided, further, that (i) the continuing or surviving Person shall will be (a) the Borrower or (b) a Restricted Subsidiary, in each case, which together with each of its Restricted Subsidiaries, shall will have complied with the applicable requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(f7) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Dispositiondisposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.057.04 or a disposition that does not constitute any Asset Sale (other than a transaction described in clause (b) of the definition of Asset Sale); and
(8) the Borrower and any Restricted Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States so long as such conversion is undertaken in good faith and would not reasonably be expected to have a Material Adverse Effect, and (b) change its name.
Appears in 2 contracts
Sources: Credit Agreement (GreenSky, Inc.), Credit Agreement (GreenSky, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted SubsidiarySubsidiary that is not a Loan Party, a the Loan Party shall be the continuing or surviving Person or the continuing or surviving person shall promptly thereafter become Loan Party; provided further, that any security interests granted to the Administrative Agent or the Mexican Collateral Agent, as applicable, for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and effect and perfected (Bto at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) no Domestic Subsidiary may merge with and into a Foreign Subsidiaryall actions required to maintain such perfected status have been take or will promptly be taken, in each case, as required by Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement and subject to the Agreed Security Principles;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) any Restricted Subsidiary may liquidate or dissolve or and (iii) any Restricted Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its the Restricted Subsidiaries and if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be or become a Subsidiary Guarantor or the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively;
(d) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the a “Successor Borrower”), ):
(A) the Successor Borrower shall will:
(1) be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof, Columbia,
(B2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, and
(3) deliver to the Administrative Agent (I) a certificate of a Responsible Officer of the Successor Borrower stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (II) and legal opinions of counsel to the Successor Borrower including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent, ;
(CB) substantially contemporaneously with such transaction (or at a later date as agreed by the Administrative Agent),
(1) each Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Guaranty confirmed that (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guarantee shall apply to Guaranty of the Obligations (including the Successor Borrower’s obligations under this Agreement, ),
(D2) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have will, by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply applicable Collateral Documents (or in another form reasonably satisfactory to the Successor Borrower’s obligations under this AgreementAdministrative Agent), confirm its grant or pledge thereunder,
(E3) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have will, by an amendment to or restatement of the applicable Mortgage confirmed (or other instrument reasonably satisfactory to the Administrative Agent and the Borrower), confirm that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement;
(C) after giving pro forma effect to such incurrence, and (F) the Borrower would be permitted to incur at least $1.00 of Permitted Ratio Debt; and
(D) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have delivered received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act
(E) provided further that (x) with respect to each of the foregoing Sections 7.04(d)(i) and 7.04(d)(ii) that any security interests granted to the Administrative Agent an officer’s certificate or the Mexican Collateral Agent, as applicable, for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and an opinion of counsel, each stating that such merger or consolidation effect and such supplement perfected (to this Agreement or any Collateral Document comply with this Agreement (and, with respect at least the same extent as in effect immediately prior to such opinion of counselmerger, otherwise substantially consistentconsolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken or will promptly be taken, in each case, as required by Section 6.11 to the extent reasonably appropriate required pursuant to the Collateral and applicableGuarantee Requirement and subject to the Agreed Security Principles, with the opinions delivered and (y) with respect to the Borrower on the Closing Dateforegoing Section 7.04(d)(ii), including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing requirements of that section and this proviso are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Event of Default exists has occurred and is continuing or would result therefromtherefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its such surviving Person’s Subsidiaries that are Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except 6.11 to the extent such merger is an Investment permitted under Section 7.02;
(f) required pursuant to the Borrower Collateral and Guarantee Requirement and subject to the Restricted Subsidiaries may consummate the MergerAgreed Security Principles; and
(gf) so long as no Event of Default exists has occurred and is continuing or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, Disposition may be consummated for the purpose of which is to effect effecting a Disposition permitted pursuant to Section 7.05, a Restricted Payment permitted pursuant to Section 7.06 or a Permitted Acquisition or other Investment permitted by Section 7.02.
Appears in 2 contracts
Sources: Credit Agreement (Playa Hotels & Resorts N.V.), Restatement Agreement (Playa Hotels & Resorts N.V.)
Fundamental Changes. Merge, dissolve, liquidate, Merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, liquidate or dissolve, except, if at the time thereof and immediately after giving effect thereto no Event of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonDefault shall have occurred and be continuing, except thatthe following:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party Person may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is a transaction in the best interests of which the Borrower and its Subsidiaries and if not materially disadvantageous to is the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation entity or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (Aw) the Successor Borrower shall deliver to the Administrative Agent all information as may be reasonably requested by the Administrative Agent to satisfy any applicable “know your customer” requirements, (x) the Successor Borrower shall be an entity organized or ▇▇▇▇:\98106221\28\78831.0005 existing under the laws law of any state of the United States, any state thereof, States or the District of Columbia or any territory thereofColumbia, (By) the Successor Borrower shall expressly assume all the obligations Obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is in a party pursuant to a supplement hereto or thereto in form manner reasonably satisfactory to the Administrative AgentAgent and (z) except as the Administrative Agent may otherwise agree, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by executed and delivered a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, customary reaffirmation agreement with respect to such opinion of counsel, otherwise substantially consistent, to its obligations under the extent reasonably appropriate Loan Documents; it being understood and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, agreed that if the foregoing conditions under clauses (w) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;Agreement and the other Loan Documents,
(eb) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with into any other Person in order to effect consummate an Investment or asset Disposition permitted pursuant to by Section 7.027.02 or Section 7.05, respectively; provided provided, that when a Restricted Subsidiary that is a Loan Party is merging into a Person that is not a Loan Party, either (i) such Loan Party will be the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11Person, (ii) such other Person will become a Loan Party and will deliver all information as may be reasonably requested by the Administrative Agent to satisfy any applicable “know your customer” requirements or (iii) if such other Person will not become a Loan Party, the relevant transaction shall be treated as an Investment and shall comply with Section 7.02;
(c) any Restricted Subsidiary may merge into the Borrower or any other Restricted Subsidiary; provided, that when any Restricted Subsidiary that is a Loan Party is merging with any other PersonRestricted Subsidiary, either (i) a Loan Party shall be the continuing or surviving Person and or (iiiii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is relevant transaction shall be treated as an Investment permitted under and shall comply with Section 7.02;
(fd) any Restricted Subsidiary may liquidate or dissolve (other than in connection with a merger or a consolidation which shall be governed by the other clauses of this Section 7.04) if the Borrower and determines in good faith that such liquidation or dissolution is in the Restricted Subsidiaries may consummate best interests of the Merger; andBorrower;
(ge) so long as no Default exists any merger or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05reincorporate or reorganize (i) any Restricted Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction; and
(f) any merger, consolidation, liquidation or dissolution in connection with the consummation of the Transactions.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (System1, Inc.), Credit and Guaranty Agreement (System1, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson or suspend or go out of a substantial portion of its or their business, except that, so long as no Default or Event of Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that (Ai) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted any Subsidiary, a such Loan Party shall be the continuing or surviving Person and (Bii) no Domestic when any wholly-owned Subsidiary is merging with another Subsidiary, such wholly-owned Subsidiary shall be the continuing or surviving Person; provided, however, that a Subsidiary of the Borrower may merge with and into a Foreign Subsidiary;
(i) any wholly-owned Subsidiary that which is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a (and such non-Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if be the Borrower determines surviving Person) in good faith that such action is connection with the Corporate Restructuring in a manner not materially adverse to the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to Lenders with the Lendersprior written consent of the Administrative Agent;
(cb) any Restricted Subsidiary Loan Party may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided Loan Party;
(c) any Material Subsidiary that if is not a Loan Party may dispose of all or substantially all its assets (including any Disposition that is in the transferor in such nature of a transaction is a Guarantor, then liquidation) to (i) the transferee must either be the Borrower or another Subsidiary that is not a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;Party; and
(d) so long as no Default exists in connection with any Permitted Acquisitions or would result therefrompermitted Investment under this Agreement, the Borrower or any Material Subsidiary may merge into or consolidate with any other PersonPerson or permit any other Person to merge into or consolidate with it; provided that (i) the Borrower Person surviving such merger shall be the continuing Borrower or surviving corporation or a Material Subsidiary, (ii) if in the Person formed by or surviving case of any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted forparty, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) is the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into in the case of any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger to which any Loan Party (other than the Borrower) is an Investment permitted under Section 7.02;
(f) a party, such Loan Party is the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05surviving Person.
Appears in 2 contracts
Sources: Term B Loan Credit Agreement (Remy International, Inc.), Term B Loan Credit Agreement (Fidelity National Financial, Inc.)
Fundamental Changes. Merge(a) No Loan Party will, dissolvenor will it permit any Restricted Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) ), or liquidate or dissolve (including, in each case, pursuant to or a division as set forth in favor of any PersonSection 1.07), except that:
, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing (ai) any Subsidiary of the Borrower may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Subsidiary of the Borrower may merge into the Borrower or any Loan Party that is a Subsidiary of the Borrower in a transaction in which the surviving entity is a Loan Party, (iii) any Person may merge into or consolidate with any Loan Party or any of its Subsidiaries in a transaction so long as, in the case of a merger or consolidation involving any Loan Party or Material Foreign Subsidiary, any such Loan Party or Material Foreign Subsidiary party to such merger or consolidation is the surviving entity, (iv) any Restricted Subsidiary may merge with (i) sell, transfer, lease or otherwise dispose of its assets to the Borrower (including a merger, the purpose of which is or to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (ii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be subject to the continuing or surviving Person and provisions of Section 6.05(iv), (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(iv) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower Loan Party which owns such Restricted Subsidiary determines in good faith that such action liquidation or dissolution is in the best interests of the Borrower such Loan Party and its Subsidiaries and if is not materially disadvantageous to the Lenders;
, (cvi) any Restricted Subsidiary (other than the Borrower) may merge into or consolidate with any Person in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Restricted Subsidiary and (vii) any Restricted Subsidiary may Dispose of all liquidate or dissolve if in connection with such liquidation or dissolution, substantially all the assets of its assets such Restricted Subsidiary are transferred to a Loan Party (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which being liquidated or dissolved is not a Loan Party in accordance with Sections 7.02 and 7.03Party); provided, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation involving a Person that is not a wholly-owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04 (if applicable). Notwithstanding anything to the contrary in the foregoing, each Loan Party and each of its Restricted Subsidiaries shall be permitted to enter into an agreement to effect any transaction of merger or consolidation that is not otherwise permitted under this Section 6.03 at a future time; provided, that such agreement shall be conditioned on (i) obtaining requisite approvals permitting the respective transaction (and any related financing or other transactions) in accordance with the requirements of Section 9.02 or (ii) Payment in Full; provided, further, that such agreement shall (x) not contain any provision imposing fees or damages on any Loan Party or its Subsidiary for failure to meet the conditions set forth above and (y) contain termination provisions which will provide for the termination of the agreement within a reasonable time if the conditions described in the preceding proviso have not been satisfied by such time.
(b) No Loan Party will, nor will it permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses which are, in the good faith judgment of the Borrower, similar, complementary or substantially related thereto or are reasonable extensions thereof.
(c) Holdings shall not (i) engage in any such Person, the “Successor Borrower”), business or activity or own any assets other than (A1) the Successor Borrower shall be an entity organized or existing under the laws incurrence of the United StatesIndebtedness and other obligations, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower loans and investments under this Agreement and the other Loan Documents or permitted pursuant to Sections 6.01(c) or 6.01(d) of this Agreement; (2) creating or suffering to exist any Lien upon any property or assets now owned or hereafter acquired, leased or licensed by it under the Collateral Documents to which the Borrower it is a party or permitted pursuant to a supplement hereto Sections 6.02(a) or 6.02(c); (3) the direct or indirect ownership of all outstanding Equity Interests in the Borrower and other Subsidiaries and the ownership of tradenames, patents and other related intellectual property and the licensing of patents; (4) performing its obligations and activities incidental thereto in form reasonably satisfactory under the Loan Documents or other documents evidencing any other Indebtedness or other obligations that it is otherwise permitted to incur hereunder; (5) making and receiving Restricted Payments and investments to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have extent permitted by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or documents evidencing any Collateral Document comply with this Agreement Indebtedness or other obligation that it is permitted to incur hereunder; (and6) maintaining its corporate or other entity existence; (7) participating in tax, with respect accounting and other administrative activities as the parent of a consolidated group of companies; (8) the performing of activities in preparation for and consummating any public offering of its common stock or any other issuance or sale of its Equity Interest; (9) the providing of indemnification to such opinion of counselofficers, otherwise substantially consistent, managers and directors and (10) any activities incidental to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11foregoing, (ii) when sell or otherwise dispose of any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be Equity Interests of the continuing or surviving Person and Borrower; (iii) no Domestic create or acquire any Subsidiary may merge with and into or make or own any investment in any Person other Person that is not organized under than the Laws of the United States, any state thereof Borrower; or the District of Columbia except (iv) fail to hold itself out to the extent such merger is an Investment permitted under Section 7.02;public as a legal entity separate and distinct from all other Persons.
(fd) the Borrower and the Restricted Subsidiaries may consummate the Merger; and
(g) so long as no Default exists or would result therefromHoldings will not change its fiscal year, a merger, dissolution, liquidation, consolidation or Disposition, the purpose which currently ends on December 31 of which is to effect a Disposition permitted pursuant to Section 7.05each year.
Appears in 2 contracts
Sources: Credit Agreement (Integral Ad Science Holding Corp.), Credit Agreement (Integral Ad Science Holding Corp.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, (or Dispose agree to do any of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Personthe foregoing), except that, so long as no Default or Event of Default shall have occurred and be continuing prior to or immediately after giving effect to any action described below or would result therefrom:
(a) notwithstanding anything in this Agreement or any Restricted other Loan Document to the contrary, upon thirty (30) days prior written notice to the Agent, Borrower may complete any merger or conversion for the sole purpose of reincorporating Borrower in Delaware (it being understood and agreed that the Agent and Lenders agree to such reincorporation solely in their capacity as Agent and Lenders, respectively hereunder and not in any other capacity);
(b) any Subsidiary which is not an Obligor may merge with (i) the Borrower (including a mergeran Obligor, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower a Loan Party shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (ii) any one or more other Restricted Subsidiaries; Subsidiaries which are not Obligors, provided that (A) when any Restricted wholly-owned Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person;
(c) any Subsidiary which is an Obligor may merge into any Subsidiary which is an Obligor or into the Borrower, provided that in any merger involving the Borrower or a Loan Party, the Borrower or such Loan Party shall be the continuing or surviving Person and (B) no Domestic Subsidiary may merge with and into a Foreign Subsidiary;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (ii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyPerson;
(d) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement[Reserved];
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person CFC that is not organized under the Laws of the United States, an Obligor may merge into any state thereof or the District of Columbia except to the extent such merger CFC that is not an Investment permitted under Section 7.02Obligor;
(f) upon thirty (30) days prior written notice to the Borrower and Agent, any entity may convert into a different entity under the Restricted Subsidiaries may consummate the Mergerstate of its formation; and
(g) so long as no Default exists or would result therefromupon fifteen (15) days prior written notice to the Agent, any Subsidiary may dissolve provided that, any assets of such Subsidiary are transferred to a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Loan Party.
Appears in 2 contracts
Sources: Credit Agreement (Pacific Sunwear of California Inc), Credit Agreement (Pacific Sunwear of California Inc)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any other Restricted Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(aA) any other Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (x) the Borrower shall be the continuing or surviving Person and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of ColumbiaPerson, or (iiB) any Restricted Subsidiary may merge with any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (B) no Domestic shall be a Subsidiary may merge with and into a Foreign SubsidiaryLoan Party;
(iA) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (iiB) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(ciii) any Restricted Subsidiary may Dispose make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (iA) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Domestic Subsidiary) or Loan Party, (iiB) to the extent constituting an InvestmentInvestment in a Restricted Subsidiary that is not a Loan Party, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 Section 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for not materially less than fair value (as determined by the Borrower in good faith) and 7.03, respectivelyany promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04;
(div) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (iA) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A1) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, State thereof or the District of Columbia or any territory thereofColumbia, (B2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or and thereto in form and substance reasonably satisfactory to the Administrative Agent, (C3) each GuarantorLoan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have by a supplement reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Guaranty confirmed Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (F4) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate)Agreement; provided, further, that (y) if such Person is not a Loan Party, no Default exists after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided, further, that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act;
(ev) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.026.04; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11, (ii) when any Restricted Subsidiary that Sections 5.11 and 5.12 and if the other party to such transaction is not a Loan Party is merging with any other PersonParty, a Loan Party shall be the continuing or surviving Person and (iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except Default exists after giving effect to the extent such merger is an Investment permitted under Section 7.02transaction;
(fvi) the Borrower and the its Restricted Subsidiaries may consummate the MergerAcquisition; and
(gvii) so long as no Default exists or would result therefrom, any Restricted Subsidiary may effect a merger, dissolution, liquidation, liquidation consolidation or Disposition, the purpose of which is amalgamation to effect a Disposition permitted pursuant to Section 7.056.05; provided that if the other party to such transaction is not a Loan Party, no Default exists after giving effect to the transaction.
(b) The Borrower will not, and will not permit any Restricted Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Restricted Subsidiaries on the Closing Date and businesses reasonably related or ancillary thereto.
Appears in 2 contracts
Sources: Credit Agreement (Virtus Investment Partners, Inc.), Credit Agreement (Virtus Investment Partners, Inc.)