Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively; (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; (c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02; (d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition; (e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and (f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 2 contracts
Sources: Credit Agreement (Refco Inc.), Credit Agreement (Refco Information Services, LLC)
Fundamental Changes. MergeExcept as contemplated by the Transactions on or prior to the Closing Date, no Credit Party shall merge, dissolve, liquidate, consolidate with or into another 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Default or Event of Default exists or would result therefrom, (a) any Restricted Subsidiary Borrower may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02Borrower, the designation of (b) any Consolidated Party (including any Unrestricted Subsidiary) which is not a Restricted Subsidiary as an Unrestricted Subsidiary Credit Party may be merged or an Unrestricted Subsidiary as a Restricted Subsidiary; consolidated with or into any Credit Party 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 6.12, (ii) to the extent the purpose of either such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower Credit Party shall be the continuing or surviving Person corporation or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person corporation shall become a Credit Party as herein provided, (c) any Subsidiary Guarantor may be merged or consolidated with or into any other Subsidiary Guarantor and (d) any Subsidiary Guarantor may dissolve, liquidate or wind up its affairs at any time provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the surviving Person foregoing or anything else in this Agreement to the contrary, no provision of this Agreement shall expressly assume prohibit the obligations REIT Guarantor, the LP Guarantor or any other direct or indirect owner of the Parent Borrower in (other than a manner reasonably acceptable to Borrower) from (i) consummating a public offering of the Administrative AgentCapital Stock of such entity, including through the issuance of additional Capital Stock of such entity, or (ii) otherwise becoming a publicly traded entity, and no such actions shall constitute a Default or an Event of Default hereunder; provided, that (x) such public offering would not result in a Change of Control and (y) the Borrowers are otherwise in compliance with the applicable terms of this Agreement. Further, notwithstanding the foregoing or anything else in this Agreement to the contrary, no Borrower may consummate any merger, consolidation or other corporate reorganization which would have the effect of making such surviving Borrower a Person shall be organized under the laws of outside the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityStates.
Appears in 2 contracts
Sources: Credit Agreement (Aviv Reit, Inc.), Credit Agreement (Aviv Reit, Inc.)
Fundamental Changes. MergeThe Borrower shall not, and shall cause each Restricted Subsidiary not to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or purchase or otherwise acquire all or substantially all of the stock or assets of any Person (or of any division thereof), 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 (including pursuant to a Disposition), except that, so long as no 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted SubsidiarySubsidiary that is not a Guarantor, (A) a Loan Party the Guarantor shall be the continuing or surviving Person or such surviving Person shall execute and deliver a Guaranty;
(Bb) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent constituting an InvestmentBorrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, such Investment then the transferee must either be an Investment in the Borrower or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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 formGuarantor;
(c) so long as no Event of Default exists the Borrower 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, the designation of make a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) Disposition to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;8.05; and
(d) the Borrower or any Restricted Subsidiary may purchase or otherwise acquire all or substantially all of the stock or assets of any Person (or of any division, business unit or product line thereof) so long as, both before and its Restricted Subsidiaries may consummate after giving pro forma effect to any such purchase or acquisition, (A) no Event of Default shall then exist or would result therefrom, (B) the Acquisition;
Borrower is in compliance with the Financial Covenant, calculated on a Pro Forma Basis, as of the last day of the then most recently ended Calculation Period, (eC) the Person or assets so acquired are in a business permitted by Section 8.07, and (D) the aggregate price of all such purchases and acquisitions of Non-Loan Parties, or of assets or stock by Non-Loan Parties, does not exceed the greater of (x) $50,000,000 and (y) 17.5% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose Calculation Period then most recently ended at the time of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing such purchase or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityother acquisition.
Appears in 2 contracts
Sources: Credit Agreement (Everi Holdings Inc.), Credit Agreement (Everi 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:
(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 jurisdiction so long as the Borrower remains organized under the laws of in the United States or any state thereof and does not become a regulated entityStates); provided that the such Borrower (as a newly recognized entity) shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or and (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 the Borrower) may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form if the Lead Borrower determines in good faith that such action is in the best interest of Albertson’s Group and if not materially disadvantageous to the Lenders (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 Lead Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (i) the transferee must be a 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 Section 7.02 (other than clause (e) of the definition of “Permitted Investments”) and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, a Borrower may merge with any other Person; provided that (i) 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 a Borrower (any such Person, the “Successor Company”), (A) the Successor 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 Company shall expressly assume all the obligations of such Borrower under this Agreement and the other Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Agent, (C) each Loan Party, unless it is the other party to such merger or consolidation, shall have confirmed that its obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor Company’s obligations under the Loan Agreements, (D) each 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 Security Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, and (E) 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 Security Document comply with this Agreement; provided further that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom (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 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by 6.11 and Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(df) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(fg) any merger, dissolution, liquidation, consolidation or Disposition in connection with the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower Restatement Effective Date Transactions shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitypermitted.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Safeway Stores 42, Inc.), Asset Based Revolving Credit Agreement (Albertsons Companies, 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 exists or would result therefrom:
(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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided , provided, that the Borrower shall be the continuing or surviving Person or the surviving Person shall be a Person organized and existing under the laws of the United States or any state thereof and shall expressly assume the obligations of the Borrower in a manner pursuant to documents reasonably acceptable to the Administrative Agent, Agent or (ii) any one or more other Restricted Subsidiaries; provided , provided, that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party the Guarantor shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an a permitted Investment in or Indebtedness permitted by of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02(c) 7.02 and 7.03(b)(iv), respectively7.03;
(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 the Borrower) may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the Second Lien Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and is not disadvantageous to the Lenders (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; 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) so long as no Event any Restricted Subsidiary may Dispose of Default exists all or would result therefromsubstantially 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 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) any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, 6.12 or (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;; and
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that 7.05 (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to other than Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity7.05(f)(A)).
Appears in 2 contracts
Sources: Second Lien Credit Agreement (GMS Inc.), Second Lien Credit Agreement (At Home Group Inc.)
Fundamental Changes. Merge, dissolve, liquidate, amalgamate, consolidate with or into another PersonPerson 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 (including, in each case, pursuant to an LLC Division or LP Division, or an allocation of assets to a Series LLC or Series LP), 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 Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as jurisdiction); provided that (A) the Borrower remains shall be a person organized under the laws of the United States or States, any state thereof or the District of Columbia, and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner pursuant to documents reasonably acceptable to the Administrative AgentAgent and (B) the surviving person shall provide any documentation and other information about such person 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, or (ii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Guarantor is merging, amalgamating or consolidating with another Restricted Subsidiary that is not a Loan Party is merging with another Restricted Subsidiary, Subsidiary Guarantor either (A) a Loan Party the Subsidiary Guarantor shall be the continuing or surviving Person or (B) such merger, amalgamation or consolidation shall be deemed to constitute either an Investment or Disposition, as elected by the extent constituting an InvestmentBorrower, and such Investment must be an a Permitted Investment, other Investment in permitted under Section 7.05 or Indebtedness of a Restricted Subsidiary which is not a Subsidiary Guarantor in accordance with Section 7.01, respectively or such Disposition must be a Disposition permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyhereunder;
(i) any Restricted Subsidiary that is not a Loan Party Subsidiary Guarantor may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Subsidiary Guarantor and (ii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve dissolve, 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 in good faith that such action is in the best interest of the Borrower and its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that in the case of any liquidation or dissolution of a Restricted Subsidiary that is (A) a Co-Borrower, such Subsidiary shall at or before the time of such dissolution cease to be a Co-Borrower under this Agreement in accordance with Section 11.03 or (B) a Loan Party, such Subsidiary shall at or before the time of such liquidation or dissolution transfer its assets to the Borrower or another Restricted Subsidiary that is a Loan Party 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 Restricted Subsidiary that is a Co-Borrower or a Guarantor will remain a Co-Borrower or a Guarantor unless such Co-Borrower or Guarantor is otherwise permitted to cease being a Co-Borrower or a Guarantor hereunder);
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary (other than the Borrower) may merge Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to any Restricted Subsidiary; provided that if the transferor in such a transaction is (A) a Co-Borrower, such Subsidiary shall at or before the time of such dissolution cease to be a Co-Borrower under this Agreement in accordance with Section 11.03 or (B) a Loan Party, then either (i) the transferee must either be the Borrower or a Subsidiary Guarantor or (ii) to the extent such Disposition of assets shall be deemed to constitute either an Investment or Disposition, such Investment must be a Permitted Investment or Indebtedness of a Non-Loan Party Subsidiary in accordance with Section 7.01, respectively, or such Disposition must be a Disposition permitted hereunder; provided, however, that the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Loan Party in the same jurisdiction as the disposing party or in another jurisdiction reasonably acceptable to the Administrative Agent;
(d) any Restricted Subsidiary (other than the Borrower) may merge, amalgamate or consolidate with, or dissolve into, any other Person in order to effect an a Permitted Investment or other Investment permitted pursuant to under Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary7.05; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a Permitted Investment or other Investment permitted Investment under Section 7.05, (iii) to the extent constituting a Disposition, such Disposition must be permitted hereunder and (iv) to the extent such Restricted Subsidiary is a Co-Borrower, it shall cease to be a Co-Borrower in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition11.03;
(e) the Borrower and its Restricted Subsidiaries Parties may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; andTransactions;
(f) the Borrower and any Restricted Subsidiary may merge effect a Permitted Tax Reorganization;
(g) any Restricted Subsidiary (other than the Borrower) may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to effect a Subsidiary Disposition (whether in one transaction or in a series of Holdings for the purpose transactions) of effecting an Investment all or substantially all of its assets (whether now owned or hereafter acquired) permitted pursuant to Section 7.027.04 (other than Dispositions permitted by this Section 7.03); provided that if such Restricted Subsidiary is a Co-Borrower, it shall cease to be a Co-Borrower in accordance with Section 11.03;
(h) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person or Dispose of its assets if (i) such transaction is undertaken in good faith to improve the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations tax efficiency of the Borrower in a manner reasonably acceptable to the Administrative Agent, and its Subsidiaries and (ii) after giving effect to such transaction, each of the Borrower security interest of the Collateral Agent in the Collateral, taken as a whole, and the value of the Guarantees, taken as a whole, is not materially impaired;
(i) any Restricted Subsidiary may enter into an Intercompany License Agreement; and
(j) any Permitted Investment may be structured as a merger, consolidation or such surviving Person amalgamation. For the avoidance of doubt, notwithstanding anything else contained herein, any LLC Conversion shall be organized permitted under the laws of the United States or any state thereof this Agreement and (iii) the Borrower or such surviving person shall not be a regulated entityeach other Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Instructure Holdings, Inc.), Credit Agreement (Instructure 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 (other than as part of the Transactions), 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the Parent Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 (other than the a Borrower) may liquidate or dissolve or and (iii) any Subsidiary may change its legal form if, with respect to clauses (ii) and (iii), the Parent Borrower determines in good faith that such action is in the best interest of the Parent Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders (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 a Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or a 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 (other than Section 7.02(e)) and 7.03, respectively; and
(d) so long as no Event of Default exists has occurred and is continuing 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 Company”), (A) the Successor 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 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 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, (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 Company’s obligations under the 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 Company’s obligations under the 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; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Parent Borrower under this Agreement; and
(e) so long as no Default has occurred and is continuing or would result therefrom (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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary of the Parent Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) 6.11 to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) required pursuant to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02Collateral and Guarantee Requirement;
(df) the Parent Borrower and its the Restricted Subsidiaries may consummate the Acquisition;Merger, related transactions contemplated by the Merger Agreement (and documents related thereto) and the Transactions; and
(eg) the Borrower so long as no Default has occurred and its Restricted Subsidiaries may consummate is continuing or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 2 contracts
Sources: Credit Agreement (Change Healthcare Holdings, Inc.), Credit Agreement (TC3 Health, Inc.)
Fundamental Changes. MergeNone of Holdings, the Borrower or 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 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 the Borrower remains organized under the laws of in the United States or any state thereof and does not become a regulated entityStates); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any Holdings or (iii) one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an InvestmentPerson, such Investment must be except in connection with an Investment in or Indebtedness Disposition otherwise permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyhereunder;
(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 (other than the Borrower) may liquidate or dissolve if the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and the Borrower reasonably determines that such action is not materially disadvantageous to the Lenders or (iii) Holdings or any Subsidiary may change its legal formform if (x) the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and the Borrower reasonably determines that such action is not materially disadvantageous to the Lenders (it being understood that a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder) and (y)
(1) such change in legal form will not adversely affect the validity, perfection or priority of the Administrative Agent’s security interest in the Collateral or (2) the Borrower promptly takes such steps (with the cooperation of the Borrower and the applicable Subsidiary, to the extent necessary or advisable) as are reasonably necessary or advisable to properly maintain the validity, perfection and priority of the Administrative Agent’s security in interest in the Collateral;
(c) any Restricted Subsidiary (other than the Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Holdings, the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the 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, respectively;
(d) so long as no Event of 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 Company”), (A) the Successor 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 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 confirm that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall by a reaffirmation of the Security Agreement and other applicable Collateral Documents confirm that its obligations thereunder shall apply to the Successor Company’s obligations under the 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 by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirm that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (F) the Administrative Agent shall either (x) reasonably determine that such merger or consolidation will not adversely affect the validity, perfection or priority of the Administrative Agent’s security interest in the Collateral, or (y) take such steps (with the cooperation of the Borrower or the Successor Company, as the case may be, to the extent necessary or advisable) as are reasonably necessary or advisable to properly maintain the validity, perfection and priority of the Administrative Agent’s security interest in the Collateral and (G) the Borrower shall deliver to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom (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 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 comply with the requirements of Section 6.12, (ii) 6.11 to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) required pursuant to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;Collateral and Guarantee Requirement; and
(df) so long as no Default exists or would result therefrom, Holdings, the Borrower and or any of its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate effect a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 2 contracts
Sources: Credit Agreement (Res Care Inc /Ky/), Credit Agreement (Res Care Inc /Ky/)
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 exists or would result therefrom:
(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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided , provided, that the Borrower shall be the continuing or surviving Person or the surviving Person shall be a Person organized and existing under the laws of the United States or any state thereof and shall expressly assume the obligations of the Borrower in a manner pursuant to documents reasonably acceptable to the Administrative Agent, Agent or (ii) any one or more other Restricted Subsidiaries; provided , provided, that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party the Guarantor shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an a permitted Investment in or Indebtedness permitted by of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02(c) 7.02 and 7.03(b)(iv), respectively7.03;
(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 the Borrower) may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the First Lien Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and is not disadvantageous to the Lenders (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; 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) so long as no Event any Restricted Subsidiary may Dispose of Default exists all or would result therefromsubstantially 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 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) any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.027.02; provided, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, 6.12 or (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;7.02; and
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that 7.05 (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to other than Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity7.05(f)(A)).
Appears in 2 contracts
Sources: First Lien Credit Agreement (Evoqua Water Technologies Corp.), First Lien Credit Agreement (Evoqua Water Technologies Corp.)
Fundamental Changes. MergeNeither the Borrowers nor Subsidiary Guarantors 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 Guarantor may merge merge, amalgamate or consolidate with (i) the any Borrower (including a merger, the purpose of which is to reorganize the such Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the such Borrower shall be the continuing or surviving Person and such merger does not result in such Borrower ceasing to be a corporation, limited liability company or limited partnership organized under the Laws of the United States, any state thereof or the surviving Person shall expressly assume the obligations District of the Borrower in a manner reasonably acceptable to the Administrative Agent, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(ib) any Borrower or Subsidiary Guarantor may change its legal form (x) if the Borrower Representative determines in good faith that such action is in the best interest of the Borrowers and the Subsidiary Guarantors and if not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party materially disadvantageous to the Lenders and (iiy) any Subsidiary assets not otherwise disposed of or transferred in accordance with Sections 7.02 (other than Section 7.02(e)) or Section 7.05 shall be transferred to another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the Borrower) may liquidate or dissolve or case of any change its in legal form, such Borrower or Subsidiary Guarantor will remain a Borrower or Subsidiary Guarantor unless, in the case of a Subsidiary Guarantor, such Subsidiary Guarantor is otherwise permitted to cease being a Subsidiary Guarantor hereunder);
(c) any Subsidiary Guarantor may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Borrower or to another Subsidiary Guarantor; provided that, after giving effect to any such Disposition, any asset constituting Collateral immediately prior to such Disposition remains Collateral immediately after giving effect to such Disposition; and
(d) so long as no Event of Default exists or would immediately result therefrom, any Restricted Subsidiary Borrower may merge or consolidate with any other Person; provided that (i) 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 such Borrower (any such Person, the “Successor Company”), (A) the Successor 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 Company shall expressly assume all the obligations of such Borrower under this Agreement and the other Loan Documents to which such 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 confirmed that its Guaranty shall apply to the Successor Company’s obligations under the 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 Company’s obligations under the Loan Documents, (E) the Borrower Representative shall have delivered to the Administrative Agent an Officers’ Certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents and (F) the Borrower Representative shall have delivered to the Administrative Agent all documentation and other information as it may reasonably request required by the Administrative Agent’s regulatory authorities with respect to such Person under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act and the Beneficial Ownership Regulation; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default exists or would immediately result therefrom, any Subsidiary Guarantor may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary Guarantor or a Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) 6.11 to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) required pursuant to the extent constituting an InvestmentCollateral and Guarantee Requirement; provided further that, if a Borrower is a party to such Investment must merger, the continuing or surviving Person shall be a permitted Investment in accordance with Section 7.02;such Borrower; and
(df) the Borrower Borrowers and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries Subsidiary Guarantors may consummate a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 2 contracts
Sources: Credit Agreement (GIC Private LTD), Credit Agreement (Blackstone Holdings III L.P.)
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 (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 the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 (other than the Borrower) may liquidate or dissolve or and (iii) any Subsidiary may change its legal form if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders (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 be a Guarantor (other than Holdings) or the 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 (other than Section 7.02(e)) and 7.03, respectively; and
(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 Company”), (A) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia, (B) the Successor 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 joinder 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 confirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to this Agreement confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) [Reserved], 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 joinder to this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default has occurred and is continuing or would result therefrom (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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) 6.11 to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) required pursuant to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02Guarantee Requirement;
(df) Holdings, the Borrower and its the Restricted Subsidiaries may consummate the Acquisition;, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(eg) the Borrower so long as no Default has occurred and its Restricted Subsidiaries may consummate is continuing or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 2 contracts
Sources: Credit Agreement (Prestige Brands Holdings, Inc.), Form 8 K
Fundamental Changes. Merge(a) Liquidate or dissolve (other than with and into another Subsidiary, dissolvewhich is a co-borrower or becomes a borrower hereunder); (b) consummate any Change of Control; or (c) acquire, liquidateor permit any of Borrower’s Subsidiaries to acquire, consolidate with all or into substantially all of the capital stock or property of another Person, except that:
(a) any Restricted Subsidiary other than in connection with an investment permitted in Section 6.6 hereof. Notwithstanding anything to the contrary in this Section 6.4, Borrower may merge with enter into a transaction that will constitute a Change of Control so long as: (i) the Borrower Person that results from such Change of Control (including a mergerthe “Surviving Entity”) shall have executed and delivered to Lender an agreement in form and substance reasonably satisfactory to Lender, containing an assumption by the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws Surviving Entity of the United States payment and performance of all Obligations and performance and observance of each covenant and condition of Borrower in the Loan Documents; (ii) all such obligations of the Surviving Entity to Lender shall be guaranteed by any Person (excluding an individual investor) that directly or indirectly owns or controls 50% or more of the voting stock of the Surviving Entity; (iii) immediately after giving effect to such Change of Control, no Event of Default or, event which with the lapse of time or giving of notice or both, would reasonably be expected to result in an Event of Default shall have occurred and be continuing; and (iv) the credit risk to Lender, in its commercially reasonable discretion, with respect to the Obligations and the Collateral shall not be increased. In determining whether the proposed Change of Control would result in an increased credit risk, Lender may consider, among other things, changes in Borrower’s management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of intellectual property rights which may reasonably be anticipated as a result of the Change of Control. In addition, (i) a Subsidiary may merge or consolidate into another Subsidiary and (ii) Borrower may consolidate or merge with any state thereof and does not become a regulated entity); of Borrower’s Subsidiaries provided that the Borrower shall be is the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityPerson.
Appears in 2 contracts
Sources: Loan and Security Agreement (Eventbrite, Inc.), Loan and Security Agreement (Eventbrite, Inc.)
Fundamental Changes. MergeCompany shall not, dissolveand shall not permit any of its Subsidiaries to, enter into any transaction of merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), except:
(i) any Subsidiary may merge or consolidate with or liquidate into another Person, except that:
(a) any Restricted Subsidiary may merge with (i) the Borrower Company (including a merger, the purpose of which is to reorganize the Borrower Company into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the Borrower Company shall be the continuing or surviving Person Person, or the continuing or surviving Person shall expressly assume the obligations of Company under the Borrower Loan Documents in a manner reasonably acceptable to the Administrative Agent, or (iib) any one or more other Restricted Subsidiaries; provided that when any Restricted such Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A1) a Loan Party shall be the continuing or surviving Person or (B2) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelysubsection 7.3;
(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;
(c) so long as no Event of Default exists or would result therefrom, Company or any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiarysubsection 7.3; provided that (ia) if the continuing or surviving Person shall be is a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, such Subsidiary shall have complied with the requirements of Section 6.12subsections 6.8 and 6.9, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iiib) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
under subsection 7.3 and (d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (ic) if the Borrower Company is a party thereto, the Borrower Company shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of Company under the Borrower Loan Documents in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and ;
(iii) any Subsidiary of Company may consummate a merger, dissolution, liquidation, consolidation or winding up, the Borrower or such surviving person shall not be a regulated entity; andpurpose of which is to effect an Asset Sale permitted pursuant to subsection 7.7B;
(fiv) the Borrower Company may merge with a Subsidiary one of Holdings its Subsidiaries for the purpose of effecting an Investment permitted pursuant to Section 7.02subsection 7.3; provided that (i) the Borrower Company shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of Company under the Borrower Loan Documents in a manner reasonably acceptable to the Administrative Agent;
(v) any Subsidiary of Company may liquidate, wind up or dissolve; provided that Company determines in good faith that such liquidation, winding up or dissolution is in the best interests of Company and is not materially disadvantageous to the Lenders; provided, further, that Company shall deliver a written notice to Administrative Agent five (ii5) Business Days prior to the Borrower intended liquidation, winding up or dissolution of such surviving Person shall be organized under the laws Subsidiary notifying Administrative Agent of the United States same, together with an Officer’s Certificate certifying that such liquidation, winding up or any state thereof dissolution is in the best interests of Company and is not materially disadvantageous to the Lenders; and
(iiivi) the Borrower or such surviving person shall not be a regulated entityPanolam Holdings II Co. may merge with and into Company.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Panolam Industries International Inc), Credit Agreement (Panolam Industries International Inc)
Fundamental Changes. MergeThe Lead Borrower or any of the Restricted Subsidiaries shall not 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 (including, in each case, pursuant to a Division), except that:
(a) any Restricted Subsidiary 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the Lead Borrower shall be the continuing or surviving Person and such merger does not result in the Lead Borrower ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the surviving Person shall expressly assume the obligations District of the Borrower in a manner reasonably acceptable to the Administrative Agent, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 the Borrower) may liquidate or dissolve or any Borrower or any Subsidiary may change its legal form (x) if the Lead Borrower determines in good faith that such action is in the best interest of the Lead Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders 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 Lead Borrower or any other Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or a Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary 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 result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) 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 such 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 or the District of Columbia (other than the Dutch Borrower, which shall remain organized in the Netherlands), (B) the Successor Borrower shall expressly assume all the obligations of the applicable Borrower under this Agreement and the other Loan Documents to which such 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 confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under the 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 Borrower’s obligations under the 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 Borrower’s obligations under the Loan Documents, (F) the applicable 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 preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents and (G) the Successor Borrower agrees 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 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 and the Beneficial Ownership Regulation; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the applicable Borrower under this Agreement; and
(e) so long as no Default exists or would result therefrom (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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Lead Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) 6.11 to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) required pursuant to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02Collateral and Guarantee Requirement;
(df) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that ;
(ig) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, [Reserved];
(iih) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity[Reserved]; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Lead Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityits Subsidiaries may consummate Permitted Intercompany Activities.
Appears in 2 contracts
Sources: Credit Agreement (CONDUENT Inc), Credit Agreement (CONDUENT 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 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of Default exists or would result therefromGuarantor, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall either be the Guarantor or such Person shall be a Restricted SubsidiaryMaterial Subsidiary and such Person (and, which together with each of if applicable, its Restricted Domestic Subsidiaries, ) shall have complied with the requirements provisions of Section 6.126.13 (without regard to the time limits otherwise set forth therein) prior to or at the time of consummation of such transaction;
(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the transferor in such a transaction is a Subsidiary that is a Guarantor, then either (i) such Disposition must constitute an Investment permitted by Section 7.02(d)(iv) or (ii) the transferee must be the Borrower, another Subsidiary that is a Guarantor, or a Material Subsidiary and such Person (and, if applicable, its Domestic Subsidiaries) shall have complied with the provisions of Section 6.13 (without regard to the extent time limits otherwise set forth therein) prior to or at the purpose time of consummation of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;Disposition; and
(dc) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower enter into such mergers, consolidations, amalgamations and its Restricted Subsidiaries may similar transactions as are reasonably necessary to consummate a mergerpurchase or other acquisition permitted by, dissolutionand made in accordance with the terms of, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.02(g); provided that (i) if the Borrower is in any such transaction a party theretoGuarantor will be merged with or into any other Person, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under a Material Subsidiary and such Person (and, if applicable, its Domestic Subsidiaries) shall have complied with the laws provisions of the United States or any state thereof and Section 6.13 (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable without regard to the Administrative Agent, (iitime limits otherwise set forth therein) prior to or at the Borrower or time of consummation of such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitytransaction.
Appears in 2 contracts
Sources: Credit Agreement (Memc Electronic Materials Inc), Credit Agreement (Memc Electronic Materials Inc)
Fundamental Changes. Merge, dissolve, liquidate, amalgamate, consolidate 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 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 may merge merge, amalgamate or consolidate with (i) the Borrower Borrower; provided that (including a merger, the purpose of which is to reorganize A) the Borrower into shall be a new jurisdiction so long as the Borrower remains Person organized under the laws of the United States or States, any state thereof or the District of Columbia, and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or (B) the surviving Person shall expressly assume provide any documentation and other information about such Person as shall have been reasonably requested in writing by any Lender through the obligations 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 Borrower in a manner reasonably acceptable to the Administrative AgentUSA PATRIOT Act, or (ii) any one or more other Restricted Subsidiaries; provided that when (x) any Restricted Subsidiary that is not a Controlled Foreign Subsidiary or FSHCO may not merge with any Restricted Subsidiary that is a Loan Party Controlled Foreign Subsidiary or FSHCO if such Controlled Foreign Subsidiary or FSHCO shall be the continuing or surviving Person and (y) when any Guarantor is merging with another Restricted Subsidiary, Subsidiary that is not a Loan Party either (A) a Loan Party the Guarantor shall be the continuing or surviving Person or (B) such merger, amalgamation or consolidation shall be deemed to constitute either an Investment or disposition, as elected by the extent constituting an InvestmentBorrower, and such Investment must be an a Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Section 7.01, respectively or such disposition must be a disposition permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyhereunder;
(i) 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 (other than the Borrower) may liquidate or dissolve dissolve, or the Borrower or any Restricted Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby and subject to compliance with Sections 6.12, 6.14 and 6.15, as applicable) change its legal form if the Borrower determines in good faith that such action is in the best interest of Holdings and its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that in the case of any dissolution of a Restricted Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted 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 Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder and, in each case, will comply with Section 6.12, 6.14 and 6.15, as applicable);
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to any 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 in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent and (ii) to the extent constituting an Investment or disposition, such Investment must be a Permitted Investment or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Section 7.01, respectively, or such disposition must be a disposition permitted hereunder; provided, further, that the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Loan Party;
(d) any Restricted Subsidiary may merge, amalgamate or consolidate with, or dissolve into, any other Person Person, or consummate a Divisions as the Dividing Person, in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted SubsidiaryPermitted 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 6.12, 6.12 and (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a Permitted Investment and (iii) to the extent constituting a Disposition, such Disposition must be permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionhereunder;
(e) the Borrower and its any Restricted Subsidiaries Subsidiary that is an LLC may consummate a mergerDivision as the Dividing Person if, dissolution, liquidation or consolidationimmediately upon the consummation of the Division, the purpose assets of which 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 otherwise result in an Asset Sale permitted by Section 7.04; provided that if the Dividing Person is a Guarantor, then any Division Successor other than the Dividing Person shall become a Guarantor to the extent required by and in accordance with Section 6.12 and the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Collateral Documents shall be maintained or created to the extent required by and in accordance with the provisions of Section 6.12, 6.14 and 6.15, as applicable;
(f) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person or consummate a Division as the Dividing Person in order to effect a Disposition permitted pursuant to Section 7.05; provided that 7.04 (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityother than Dispositions permitted by Section 7.03); and
(fg) the Borrower any Permitted Investment may merge with be structured as a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing merger, consolidation or surviving Person amalgamation or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityDivision.
Appears in 2 contracts
Sources: Credit Agreement (Allison Transmission Holdings Inc), Credit Agreement (Allison Transmission Holdings Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a) Neither the Company nor any Restricted Subsidiary may Borrower shall merge or consolidate with any other Person or Dispose of all or substantially all of its assets to any Person unless (iA) no Event of Default shall be continuing after giving effect to such transaction and (B)(x) such Borrower shall be the continuing entity or (y)
(1) the Borrower (including a mergerPerson formed by or surviving such merger or consolidation, or the purpose transferee of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains such assets, shall be an entity organized or existing under the laws of the United States States, any state thereof, or the District of Columbia (or, in the case of any Subsidiary Borrower organized outside of the United States, the jurisdiction of incorporation of such Subsidiary Borrower or any state thereof and does not become a regulated entity); provided other Foreign Subsidiary Borrower) that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume assumes all the obligations of such Borrower under the Borrower in Loan Documents pursuant to a manner reasonably acceptable supplement or amendment to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner Documents reasonably acceptable satisfactory to the Administrative Agent, (ii2) the Borrower Company and, during any Reinstated Guarantee Period, each Subsidiary Guarantor shall have reaffirmed its obligations under the Loan Documents and (3) the Administrative Agent shall have received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the Administrative Agent and consistent with the opinions delivered on the Closing Date with respect to such Borrower; provided, that, so long as no Obligations are owed (or in the case of Letters of Credit, as long as such surviving Obligations are Collateralized) by the applicable Subsidiary Borrower, the Company may elect for such Subsidiary to cease to be a “Borrower” hereunder pursuant to Section 10.1(d) hereof and, thereafter, such Subsidiary shall not be subject to the restrictions contained in this paragraph.
(b) During any Reinstated Guarantee Requirement Period, no Subsidiary that is a Subsidiary Guarantor shall merge or consolidate with any other Person or dispose of all or substantially all of its assets to any Person unless (i) the Company or a Subsidiary Guarantor shall be the continuing entity or shall be the transferee of such assets, (ii)(A) the Person formed by or surviving such merger or consolidation, or the transferee of such assets, shall be an entity organized or existing under the laws of the United States or States, any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person thereof, or the surviving Person shall District of Columbia that expressly assume assumes all the obligations of such other Subsidiary Guarantor under the Borrower in Loan Documents pursuant to a manner supplement or amendment to each applicable Loan Document reasonably acceptable satisfactory to the Administrative Agent, (iiB) the Borrower or such surviving Person Company and each then-remaining Loan Party shall be organized have reaffirmed its obligations under the laws Loan Documents and (C) the Administrative Agent shall have received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the United States Administrative Agent and, if applicable, consistent with the opinions delivered on the Closing Date with respect to such Loan Party, or any state thereof and (iii) the Borrower or such surviving person shall in connection with an asset sale not be a regulated entityprohibited by Section 7.3.
Appears in 2 contracts
Sources: 5 Year Revolving Credit Agreement (General Motors Co), 5 Year Revolving Credit Agreement (General Motors Financial Company, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a) any Restricted Subsidiary may merge with or liquidate into (i) the any Borrower (including a merger, the purpose of which is to reorganize the any Borrower into a new jurisdiction so long as the such Borrower remains organized under the laws of the United States or States, any state thereof or the District of Columbia (the requirements set forth in this clause (i), and does not become a regulated entitythe last proviso of this Section 7.04(a), the “Jurisdictional Requirement”)); provided that the such Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the such Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) Section 7.02 and 7.03(b)(iv)any Indebtedness corresponding to such Investment must be permitted by Section 7.03; provided further that, respectively;if any such merger results in a new jurisdiction of organization of such Borrower or other Loan Party, the Borrowers shall have provided the Administrative Agent with prior written notice of such change in jurisdiction and proper financing statements, duly prepared for filing under the Uniform Commercial Code in such jurisdiction with respect to such Borrower or such Loan Party.
(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 any Borrower) may liquidate or dissolve or change its legal formform if the Borrowers determine in good faith that such action is in the best interests of the business of the Borrowers;
(c) so long as no Event of Default exists or would result therefrom, any Borrower or any Restricted Subsidiary may merge with any other Person in order to (i) effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 7.02 (provided that (iA) 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 6.12, 6.12 and (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iiiB) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02) or (ii) to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 6.16; provided that if any Borrower is a party to any transaction effected pursuant to this Section 7.04(c), (1) such Borrower shall be the continuing and surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent and (2) the Jurisdictional Requirement shall be satisfied;
(d) the Borrower UHS and its Restricted Subsidiaries may consummate the Acquisition;Acquisition and the transactions contemplated thereby; and
(e) the Borrower and its Restricted Subsidiaries may consummate so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected; provided that (i) if the any Borrower is a party theretoto any transaction effected pursuant to this Section 7.04(e), the (i) such Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the such Borrower in a manner reasonably acceptable to the Administrative Agent, Agent and (ii) the Borrower or such surviving Person Jurisdictional Requirement shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitysatisfied.
Appears in 2 contracts
Sources: Credit Agreement (Universal Hospital Services Inc), Credit Agreement (Universal Hospital Services Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, other than a Consolidating Merger, 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 exists or would result therefrom:
(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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided , provided, that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner pursuant to documents reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided , provided, that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party the Guarantor shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an a permitted Investment in or Indebtedness permitted by of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02(c) 7.02 and 7.03(b)(iv), respectively7.03;
(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 the Borrower) may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders (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; 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) so long as no Event any Restricted Subsidiary may Dispose of Default exists all or would result therefromsubstantially 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 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) any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, 6.12 or (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;; and
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that 7.05 (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to other than Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity7.05(d)(i)).
Appears in 2 contracts
Sources: Credit Agreement (At Home Group Inc.), Credit Agreement (At Home Group Inc.)
Fundamental Changes. MergeNeither the Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, consummate a Division 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 (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 the Borrower remains organized under the laws of in the United States or any state thereof and does not become a regulated entityStates); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 the Borrower) 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 interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders (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 be a Guarantor or the 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 (other than Section 7.02(e)) 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 Company”), (A) the Successor 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 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 confirmed that its Guarantee shall apply to the Successor Company’s obligations under the 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 Company’s obligations under the 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 Company’s obligations under the 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; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom (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 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) 6.11 to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) required pursuant to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02Collateral and Guarantee Requirement;
(df) the Borrower and its the Restricted Subsidiaries may consummate the Acquisition, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions;
(eg) the Borrower and its Restricted Subsidiaries may consummate so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(fh) any Restricted Subsidiary that is an LLC may consummate a Division if, immediately upon the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations consummation of the Borrower Division, the assets of such Restricted Subsidiary 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 otherwise result in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityDisposition permitted by Section 7.05(j).
Appears in 2 contracts
Sources: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Fundamental Changes. MergeWith respect to the Borrower or any Significant Subsidiary, dissolvewithout the consent of the Administrative Agent and the Required Lenders enter into any transaction of merger or consolidation or amalgamation, or liquidate, consolidate wind up or dissolve (or suffer any liquidation or dissolution), convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or substantially all of the consolidated assets of the Borrower and its Subsidiaries, taken as a whole, except (a) for sales, leases or rentals of property or assets in the ordinary course of business, (b) that any consolidated Subsidiary of the Borrower may be merged or consolidated with or into another 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person Person) or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) with any one or more other Restricted Subsidiaries; Subsidiaries of the Borrower (provided that when if any Restricted such transaction shall be between a Subsidiary that is and a Loan Party is merging with another Restricted wholly-owned Subsidiary, (A) a Loan Party the wholly-owned Subsidiary shall be the continuing or surviving Person Person), (c) any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (Bupon voluntary liquidation or otherwise) to the extent constituting an Investment, such Investment must be an Investment in Borrower or Indebtedness permitted by Sections 7.02(c) another wholly-owned Subsidiary of the Borrower and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) be merged with any other Person if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or is the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, (ii) immediately after giving effect to such merger, there shall exist no condition or event which constitutes an Event of Default or which, with the Borrower giving of notice or such surviving Person shall be organized under the laws lapse of the United States time or any state thereof both, would constitute an Event of Default, and (iii) all representations and warranties contained in Article III hereof are true and correct in all material respects (except for any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which representation shall be true and correct in all respects) on and as of the Borrower date of the consummation of such merger, and after giving effect thereto, as though restated on and as of such date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which representation shall be true and correct in all respects) as of such surviving person shall not be a regulated entityearlier date).
Appears in 2 contracts
Sources: Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)
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 exists or would result therefrom:
(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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided , provided, that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner pursuant to documents reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided , provided, that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party the Guarantor shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an a permitted Investment in or Indebtedness permitted by of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02(c) 7.02 and 7.03(b)(iv), respectively7.03;
(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 the Borrower) may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders (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; 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) so long as no Event any Restricted Subsidiary may Dispose of Default exists all or would result therefromsubstantially 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 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) any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, 6.12 or (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;; and
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that 7.05 (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to other than Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity7.05(d)(i)).
Appears in 2 contracts
Sources: Credit Agreement (At Home Group Inc.), Credit Agreement (At Home 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 Person (including, in each case, pursuant to a Division), except that:that (subject in all respects to the Orders):
(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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or resulting entity) and (ii) any one or more other Restricted Subsidiaries; Subsidiaries (provided that when any Restricted Subsidiary that is a Loan Credit Party is merging or amalgamating with another Restricted Subsidiary, (A) a Loan Credit Party shall be the a continuing or surviving Person or (B) to the extent constituting an InvestmentPerson, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(ivas applicable), respectively;
(i) any Subsidiary may liquidate, dissolve or wind up, or (B) any Subsidiary may change its legal form, in each case, if the Borrower determines in good faith that such action is in the best interests of the Borrower and the other Subsidiaries and is not a Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party materially disadvantageous to the DIP Lenders and (ii) any Subsidiary (other than the Borrower) Borrower may liquidate or dissolve or change its legal formform if it determines in good faith that such action is in the best interests of the Borrower and the other Subsidiaries and the Required DIP Lenders reasonably determine it is not disadvantageous to the DIP Lenders;
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted another Subsidiary; provided that (i) if the continuing or surviving Person shall be transferor in such a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16Credit Party, or (iii) to then the extent constituting an Investment, such Investment transferee must be a permitted Investment in accordance with Section 7.02Credit Party;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition[reserved];
(e) the Borrower and its Restricted Subsidiaries may consummate [reserved]; and
(f) a merger, amalgamation, dissolution, liquidation winding up, liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall may be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityeffected.
Appears in 2 contracts
Sources: Superpriority Secured Debtor in Possession Term Loan Credit Agreement (Spirit Aviation Holdings, Inc.), Superpriority Secured Debtor in Possession Term Loan Credit Agreement (Spirit Aviation Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, (a) The Borrower may not consolidate or merge with or into another Personor wind up into, except thatand may not sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(a) any Restricted Subsidiary may merge with (i) the Borrower is the surviving corporation or the Person formed by or surviving any such consolidation or merger (including a mergerif other than the Borrower) or the Person to whom such sale, the purpose of which assignment, transfer, lease, conveyance or other disposition will have been made is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized or existing under the laws of the United States or States, any state thereof thereof, the District of Columbia, (such Person, the “Successor Company”);
(ii) the Successor Company, if other than the Borrower, expressly assumes all the Obligations of the Borrower pursuant to documentation reasonably satisfactory to the Administrative Agent;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transaction and does any related financing transactions on a Pro Forma Basis, as if such transactions had occurred at the beginning of the applicable four-quarter period, the Consolidated Secured Debt Ratio will not become be greater than the Financial Covenant Level;
(v) each Guarantor, unless it is the other party to the transactions described above, in which case clause (i) of Section 6.04(c) shall apply, shall have confirmed that its Obligations under the Loan Documents to which it is a regulated entity)party pursuant to documentation reasonably satisfactory to the Administrative Agent; and
(vi) the Borrower shall have delivered to the Administrative Agent an Officer’s Certificate stating that such consolidation, merger or transfer and such documentation relating to the Loan Documents, if any, comply with this Agreement; provided that the Borrower shall be (x) promptly notify the continuing or surviving Person or Administrative Agent of any such transaction and cause the surviving Person shall Successor Company, if other than the Borrower, to expressly assume all the obligations Obligations of the Borrower pursuant to documentation reasonably satisfactory to the Administrative Agent and (y) take all other required actions either prior to or upon the later to occur of 30 days following such transaction and the date of the required delivery of the next Pricing Certificate (or such longer period as to which the Administrative Agent may consent) in order to preserve and protect the Liens on the Collateral securing the Secured Obligations. The Successor Company will succeed to, and be substituted for the Borrower under the Loan Documents. Notwithstanding the foregoing, the Borrower may consummate the Transactions (including the Acquisition).
(b) Notwithstanding the foregoing paragraphs (a)(iii) and (a)(iv),
(i) the Borrower or a Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Borrower or a Subsidiary Guarantor;
(ii) the Borrower may merge with an Affiliate of the Borrower solely for the purpose of reorganizing the Borrower in a manner reasonably acceptable to State of the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) United States so long as no Event the amount of 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, the designation Indebtedness of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;is not increased thereby; and
(eiii) Acquisition Corp. may merge with and into the Company.
(c) No Subsidiary Guarantor will, and the Borrower and will not permit any Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether or not the Borrower or Subsidiary Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its Restricted Subsidiaries may consummate a mergerproperties or assets, dissolutionin one or more related transactions, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that any Person unless:
(i) if (A) such Subsidiary Guarantor is the Borrower is a party thereto, surviving corporation or the Borrower shall be the continuing Person formed by or surviving Person any such consolidation or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable merger (if other than such Guarantor) or to the Administrative Agentwhich such sale, (ii) the Borrower assignment, transfer, lease, conveyance or such surviving Person shall be other disposition will have been made is organized or existing under the laws of the United States States, any state thereof, the District of Columbia, or any state territory thereof and (iii) such Guarantor or Person, the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.“Successor Person”);
Appears in 2 contracts
Sources: First Lien Credit Agreement (Blackboard Inc), Second Lien Credit Agreement (Blackboard Inc)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary to, liquidate, merge into or consolidate with any other Person, or permit any other Person to merge into another Personor consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, provided that both immediately before and after giving effect thereto, no Event of Default shall or would exist:
(a) any Restricted Subsidiary may merge with (i) the Borrower may merge or consolidate with any Person, provided that (including a mergerA) the Borrower shall be the surviving entity thereof, (B) the Borrower shall have satisfied the notice requirements in Section 6.1(e) with respect thereto, and (C) immediately after giving effect thereto, the purpose Loan Parties shall be in compliance on a pro forma basis with all Financial Covenants as of which is to reorganize the most recent fiscal quarter end (assuming, for purposes of the Financial Covenants, that all mergers, acquisitions and dispositions consummated since the first day of such fiscal quarter, had occurred on the first day of such fiscal quarter);
(ii) the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States may merge or consolidate with any state thereof and does not become a regulated entity); Subsidiary Guarantor, provided that the Borrower shall be the continuing surviving entity;
(iii) [Reserved];
(A) any Subsidiary may merge or surviving Person consolidate with or the surviving Person shall expressly assume the obligations of into the Borrower in a manner reasonably acceptable to transaction in which the Administrative AgentBorrower is the surviving Person, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to any Subsidiary Guarantor may merge or consolidate with or into any Subsidiary in a transaction in which a Subsidiary Guarantor is the extent constituting an Investmentsurviving Person, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(iC) any Excluded Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary (including another Excluded Subsidiary) in a transaction in which such other Subsidiary is the surviving Person;
(v) any Subsidiary may merge or consolidate with any other Person, provided that (A) immediately after giving effect thereto, no Default shall or would exist, and (B) either (1)(a) such Subsidiary is the surviving Person, and (b) such merger or consolidation is not a Loan Party prohibited by Section 7.5, or (2)(a) such other Person is the surviving Person, and (b)(i) such merger or consolidation is not prohibited by Section 7.7, or (ii) any Subsidiary (other than the Borrower) may liquidate such merger or dissolve or change its legal form;
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with any consolidation is not prohibited by Section 7.5 and such other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of shall become a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment Guarantor in accordance with Section 7.026.11;
(dvi) (A) the Borrower may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to any Subsidiary Guarantor, (B) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to any other Subsidiary Guarantor (upon voluntary liquidation or dissolution or otherwise), and (C) any Excluded Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its Restricted Subsidiaries may consummate assets to the AcquisitionBorrower or any Subsidiary (upon voluntary liquidation or dissolution or otherwise);
(evii) the Borrower and any Subsidiary may sell, transfer, lease or otherwise dispose of its Restricted Subsidiaries may consummate assets in a mergertransaction that is not otherwise permitted by this Section 7.3(a), dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower such sale, transfer, lease or other disposition is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitypermitted by Section 7.7; and
(fviii) any Subsidiary may liquidate, wind up or dissolve so long as (A) the Borrower may merge with assets of any such Subsidiary that is a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant Guarantor are transferred to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or another Subsidiary Guarantor, or (B) the assets of any such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) Subsidiary that is an Excluded Subsidiary are transferred to the Borrower or such surviving person a Subsidiary.
(b) The Borrower will not, and will not permit any Subsidiary thereof to, engage in any business other than businesses of the type conducted by the Borrower and the Subsidiaries on the Closing Date, the ownership of the Equity Interests of any Liberty Subsidiary or the Contributed Ventures Assets, and businesses which are now, or which in the future shall not be have become, reasonably related thereto or a regulated entityreasonable extension thereof.
Appears in 2 contracts
Sources: Credit Agreement (Gci Liberty, Inc.), Credit Agreement (Gci, 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:
(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 jurisdiction so long as the Borrower remains organized under the laws of in the United States or any state thereof and does not become a regulated entityStates); provided that the such Borrower (as a newly recognized entity) shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or and (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 the Borrower) may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form if the Parent determines in good faith that such action is in the best interest of the ▇▇▇▇▇ Group and if not materially disadvantageous to the Lenders (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 Parent or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (i) the transferee must be a 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 Section 7.02 (other than clause (e) of the definition of “Permitted Investments”) and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, a Borrower may merge with any other Person; provided that (i) 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 a Borrower (any such Person, the “Successor Company”), (A) the Successor 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 Company shall expressly assume all the obligations of such Borrower under this Agreement and the other Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Agent, (C) each Loan Party, unless it is the other party to such merger or consolidation, shall have confirmed that its obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor Company’s obligations under the Loan Agreements, (D) each 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 Security Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) 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 Security Document does not conflict with this Agreement and (F) the Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act reasonably requested by the Lenders; provided further that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom (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 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by 6.11 and Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;6.14; and
(df) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Keane Group, Inc.), Asset Based Revolving Credit Agreement (Keane Group, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, amalgamate 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, so long as no Event of Default exists or would result therefrom:
(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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided , provided, that the Borrower shall be the continuing or surviving Person or the surviving Person shall be a Person organized and existing under the laws of the United States or any state thereof and shall expressly assume the obligations of the Borrower in a manner pursuant to documents reasonably acceptable to the Administrative Agent, Agent or (ii) any one or more other Restricted Subsidiaries; provided , provided, that when any Restricted Subsidiary that is the Borrower, a Loan Party U.S. Guarantor or a Canadian Guarantor is merging with another Restricted Subsidiary, the Borrower, U.S. Guarantor or Canadian Guarantor, as applicable (Aand if such merger involves both the Borrower and a U.S. Guarantor or a Canadian Guarantor, the Borrower) a Loan Party shall be the continuing continuing, surviving or surviving succeeding Person or (B) to the extent constituting an Investment, such Investment must be an a permitted Investment in or Indebtedness permitted by of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02(c) 7.02 and 7.03(b)(iv), respectively7.03;
(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 the Borrower) may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the First Lien Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and its Restricted Subsidiaries and is not disadvantageous to the Lenders (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; 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) so long as no Event any Restricted Subsidiary may Dispose of Default exists all or would result therefromsubstantially 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 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) any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing continuing, surviving or surviving succeeding Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, 6.12 or (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;; and
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that 7.05 (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to other than Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity7.05(f)(A)).
Appears in 2 contracts
Sources: First Lien Credit Agreement (GMS Inc.), Amendment No. 6 (GMS 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 Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that (x) when any Restricted Subsidiary that Guarantor is a Loan Party is merging merging, amalgamating or consolidating with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person shall be the Guarantor or shall become a Guarantor concurrently with such transaction and (By) when any wholly-owned Subsidiary is merging with another Subsidiary, the continuing or surviving Person shall be the wholly-owned Subsidiary or shall become a wholly-owned Subsidiary concurrently with such transaction;
(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent constituting an InvestmentBorrower or to another Subsidiary; provided that if the transferor in such a transaction is (i) a Guarantor, such Investment then the transferee must be an Investment in only any of the Borrower, a Guarantor or Indebtedness permitted by Sections 7.02(canother Subsidiary that becomes a Guarantor concurrently with such transaction and (ii) and 7.03(b)(iv)a wholly-owned Subsidiary, respectivelythen the transferee must either be the Borrower or a wholly-owned Subsidiary;
(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 (ii) any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal formform if the Borrower determines in good faith that such action is in the interest of the Borrower and its Subsidiaries;
(cd) so long as no Event any consolidation of Default exists the Borrower with or would result therefrommerger of the Borrower into any other Person or Persons (whether or not affiliated with the Borrower), or successive consolidations or mergers to which the Borrower or its successor or successors shall be a party or parties, provided, however, that, the Borrower hereby consents and agrees that, upon any such consolidation or merger, the due and punctual payment of the principal of and interest on all of the Loans and the due and punctual performance and observance of all of the covenants, conditions and other obligations of this Agreement and the Notes to be performed and observed by the Borrower, shall be expressly assumed in an agreement satisfactory in form and substance to the Administrative Agent and the Lenders, executed and delivered to the Administrative Agent by the Person formed by such consolidation or merger, provided, further, that the Person formed by such consolidation or merger shall be a Person organized and existing under the laws of the United States, any Restricted state thereof or the District of Columbia, and provided, further, that immediately before and after giving effect to any such transaction (and treating any Consolidated Funded Indebtedness or Sale and Leaseback Transaction which becomes an obligation of the resulting or surviving Person as a result of such transaction as having been incurred or entered into by such Person at the time of such transaction), no Default shall exist. Unless the conditions prescribed above in this Section 7.04(d) are satisfied, no such consolidation or merger shall be permitted;
(e) the Borrower or any Subsidiary may merge with any other Person in order to effect an Investment expressly permitted pursuant to Section 7.02Sections 7.02(e) and (f); and
(f) with respect to any Subsidiary, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition expressly permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto7.05(c)(i), the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, and (ii) Dispositions made in accordance with the Borrower or such surviving Person shall be organized under the laws terms of the United States Section 7.05(c)(ii), or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
of Sections 7.05(e), (f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that or (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityg).
Appears in 2 contracts
Sources: Credit Agreement (Telephone & Data Systems Inc /De/), Credit Agreement (Telephone & Data Systems Inc /De/)
Fundamental Changes. MergeThe Borrower shall not, nor shall it permit any 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 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) any Restricted Subsidiary may merge or consolidate with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided , provided, that when any Restricted Grantor or Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party Grantor or Subsidiary Guarantor, as applicable, shall be the continuing or surviving Person Person;
(b) any Subsidiary of the Borrower may Dispose of all or substantially all of its assets (Bupon voluntary liquidation or otherwise) to the extent constituting an Investment, such Investment must be an Investment in Borrower or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted another Subsidiary; provided that (i) if the continuing transferor in such a transaction is a Grantor or surviving Person shall Subsidiary Guarantor, then the transferee must be a Restricted SubsidiaryGrantor or a Subsidiary Guarantor, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12as applicable, (ii) if the property subject to the extent the purpose such Disposition includes any Borrowing Base Asset, then, upon consummation of such transaction is Disposition such property shall either continue to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary qualify as a Restricted Subsidiary Borrowing Base Asset or shall have been removed as a Borrowing Base Asset pursuant to a Release Transaction in accordance with the provisions of Section 2.18(c), and (iii) if the property subject to such Disposition includes any Collateral, then, upon consummation of such Disposition such property shall either continue to constitute Collateral or the Borrowing Base Asset constituting or related to such Collateral shall have been removed as a Borrowing Base Asset pursuant to a Release Transaction in accordance with the provisions of Section 2.18(c);
(c) Dispositions that are permitted under Section 7.05, and Investments that are permitted under Section 7.02, shall be permitted under this Section 7.04; provided, that in the case of any Disposition made in connection with a merger or consolidation, such transaction must also be permitted by pursuant to Section 6.167.04(a) or 7.04(d), or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;as applicable; and
(d) the Borrower and its Restricted Subsidiaries Any Subsidiary may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate merge or consolidate with any Person that is not a merger, dissolution, liquidation Subsidiary in connection with an Investment permitted under Section 7.02 or consolidation, the purpose of which is to effect a Disposition permitted pursuant to under Section 7.05; provided that (i) if in the Borrower is case of a party theretomerger or consolidation involving the Borrower, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, and (ii) in the Borrower case of any merger or such surviving Person shall be organized under the laws of the United States consolidation involving a Grantor or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for Guarantor and not involving the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that Borrower, either (ix) the Borrower shall be the continuing or surviving Person shall cease to be a Subsidiary or (y) the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not must be a regulated entity.Grantor or a Subsidiary Guarantor, as applicable (or become a Grantor or a Subsidiary Guarantor, as applicable, upon the consummation thereof)
Appears in 2 contracts
Sources: Credit Agreement (Safety, Income & Growth, Inc.), Credit Agreement (Safety, Income & Growth, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except thator 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 other than:
(a1) 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that that:
(a) the Borrower shall will be the continuing or surviving Person Person, and
(b) such merger or consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States, any state thereof or the surviving Person shall expressly assume the obligations District of the Borrower in a manner reasonably acceptable to the Administrative Agent, or Columbia;
(ii2) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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 Restricted Subsidiary, liquidate, dissolve or change its legal formform if the Borrower determines in good faith that such action is in the best interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders, taken as a whole;
(c3) any merger the sole purpose of which is to reincorporate or reorganize (i) any U.S. Subsidiary in another jurisdiction in the U.S. or (ii) any Non-U.S. Subsidiary in the U.S. or any other jurisdiction shall be permitted;
(4) so long as no Event of Default exists has occurred and is continuing or would result therefrom, any Restricted Subsidiary ; the Borrower may merge or consolidate with any other Person; provided that
(a) the Borrower will be the continuing or surviving Person, or
(b) if the Person in order to effect an Investment permitted pursuant to Section 7.02formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that “Successor Borrower”),
(i) the continuing Successor Borrower will be an entity organized or surviving Person shall be a Restricted Subsidiaryexisting under the Laws of the United States, which together with each any state thereof or the District of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, Columbia;
(ii) the Successor Borrower will 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;
(iii) each Guarantor, unless it is party to such merger or consolidation, will have confirmed that its Guarantee of the Obligations pursuant to the Collateral Agreement will apply to, and the Secured Obligations (as defined in the Collateral Agreement) will include, the Successor Borrower’s Obligations; and
(iv) the Borrower will have delivered to the Administrative Agent (A) an officer’s certificate stating that such merger or consolidation complies with this Agreement and (B) an opinion of counsel, including customary organization, due execution, no conflicts and enforceability opinions with respect to the Successor Borrower, in each case to the extent reasonably requested by the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must Administrative Agent; it being agreed that if the foregoing are satisfied, the Successor ▇▇▇▇▇▇▇▇ will succeed to, and be permitted by Section 6.16substituted for, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;Borrower under this Agreement; and
(d5) the Borrower subject to clauses (1) and its Restricted Subsidiaries may consummate the Acquisition;
(e4) the Borrower and its Restricted Subsidiaries may consummate a mergerabove, dissolution, liquidation or consolidation, transactions the purpose of which is to effect a Permitted Investment (other than pursuant to Section 6.04(14)) or a Disposition permitted pursuant to Section 7.05; provided that 6.06 (iother than pursuant to Section 6.06(5) if or a Disposition of all or substantially all of the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations assets of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityits Restricted Subsidiaries); and
(f6) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof Transactions and (iii) the Borrower or such surviving person shall not be a regulated entityPermitted Reorganizations.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.), Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
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, so long as no Default exists or would result therefrom:
(a) so long as immediately after giving effect to such merger, amalgamation or consolidation, the Borrower shall be in Pro Forma Compliance with the financial covenants set forth in Section 7.10, any Restricted Subsidiary (or any other Person) 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 the Borrower remains organized under the laws in any State of the United States or any state thereof and does not become a regulated entityof America); provided that the Borrower shall be the continuing or surviving Person or (x) the surviving Person shall expressly assume the obligations of the Borrower in a manner under the Loan Documents pursuant to documents reasonably acceptable to the Administrative AgentAgent and the Required Lenders (which consent of the Required Lenders shall be deemed to have been given without any further action or consent of any Lender if such documentation has not been objected to in writing by the Required Lenders within five (5) Business Days following the Lenders’ receipt of notice thereof) and (y) the Administrative Agent and each Lender shall have received, at least three (3) Business Days prior to the consummation of such merger, amalgamation or consolidation, all documentation and other information relating such surviving Person as has been reasonably requested and is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the PATRIOT Act; provided that the Borrower must be the surviving Person in any such transaction with an Excluded Subsidiary or (ii) any one or more other Restricted Subsidiaries; provided provided, further, that when any Restricted Guarantor is merging or amalgamating with another Subsidiary that is not a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party the Guarantor shall be the continuing or surviving Person or (B) to the extent constituting an Investment, continuing or surviving Person shall assume such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyGuarantor’s obligations under the Loan Documents;
(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 the Borrower) may liquidate or dissolve dissolve, or the 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 Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries taken as a whole and is not disadvantageous to the Lenders in any material respect (it being understood that in the case of any liquidation or dissolution of a Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such liquidation or dissolution transfer its assets to another Subsidiary that is a Loan Party unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Subsidiary that is a Loan Party will remain a Loan Party unless such Loan Party is otherwise permitted to cease being a Loan Party hereunder and a Domestic Subsidiary shall remain a Domestic Subsidiary);
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to any Subsidiary; provided that if the transferor in such transaction is a Guarantor, then (i) the transferee must be a Loan Party and (ii) to the extent constituting an Investment, such Investment must be permitted by Section 7.02 (other than Section 7.02(e));
(d) any Subsidiary may merge, amalgamate or consolidate with, or dissolve into, any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary7.02 (other than Section 7.02(e)); 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 6.126.13, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
7.02 (dother than Section 7.02(e)), (iii) to the Borrower extent constituting a Disposition, such Disposition must be permitted hereunder and its Restricted Subsidiaries may consummate (iv) to the Acquisitionextent such Subsidiary is a Loan Party, it must remain a Loan Party and to the extent such Subsidiary is a Domestic Subsidiary, it must remain a Domestic Subsidiary;
(e) the Borrower and any Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person or Dispose of all or substantially all of its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is assets in order to effect a Disposition permitted pursuant to Section 7.05;
(f) any Investment permitted by Section 7.02 (other than Section 7.02(e)) may be structured as a merger, consolidation or amalgamation; and
(g) so long as immediately after giving effect to such merger, consolidation or amalgamation, the Borrower shall be in Pro Forma Compliance with the financial covenants set forth in Section 7.10, the Borrower may merge, consolidate or amalgamate with any other Person in which the Borrower is not the surviving Person (any such Person, the “Successor Company”); provided that (i) if (A) the Successor 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) prior to or on the date of any such transaction, the Successor 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 theretopursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Required Lenders (which consent of the Required Lenders shall be deemed to have been given without any further action or consent of any Lender if such documentation has not been objected to in writing by the Required Lenders within five (5) Business Days following the Lenders’ receipt of notice thereof), (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) in such jurisdictions as may be required by applicable Law to preserve and protect the Lien of the Collateral Documents 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) the Collateral owned by or transferred to the Successor Company shall (a) continue to constitute Collateral under the Collateral Documents, (b) be subject to the Lien in favor of and for the benefit of the Secured Parties, and (c) not be subject to any Lien other than Liens permitted by Section 7.01, in each case except as otherwise permitted by the Loan Documents, the property and assets of the Person which is merged or consolidated with or into the Successor Company, to the extent that they are property or assets of the types which would constitute Collateral under the Collateral Documents, shall be treated as after-acquired property and the Successor Company shall take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the Collateral Documents in the manner and to the extent required in the Collateral Documents, (E) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its guaranty shall apply to the Successor Company’s obligations under the Loan Documents, (F) 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 Company’s obligations under the Loan Documents, (G) 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 Company’s obligations under the Loan Documents, (H) if requested by the Administrative Agent, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations have delivered a legal opinion of the Borrower counsel in a manner form reasonably acceptable satisfactory to the Administrative AgentAgent with respect to the matters set forth in this Section 7.04(g), (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (iI) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable have delivered to the Administrative AgentAgent an officer’s certificate stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents and (iiJ) the Borrower Administrative Agent and each Lender shall have received, at least three (3) Business Days prior to the consummation of such merger, consolidation or amalgamation, all documentation and other information relating to such surviving Person shall as has been reasonably requested and is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the PATRIOT Act; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be organized under the laws of the United States or any state thereof and (iii) substituted for, the Borrower or such surviving person shall not be a regulated entityunder this Agreement.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Keyw Holding Corp), First Lien Credit Agreement (Keyw Holding Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, or effect a Division, 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;that:
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person Person;
(ii) such merger or consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States, any state thereof or the surviving Person District of Columbia; and
(iii) in the case of a merger or consolidation of Holdings with and into the Borrower, (A) no Event of Default shall exist at such time or after giving effect to such merger or consolidation, (B) Holdings shall not be an Obligor in respect of any Qualified Holding Company Debt or any other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement at such time, (C) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower, (D) 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 party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (E) such direct parent of the Borrower shall concurrently become a Guarantor and pledge 100% of the Equity Interest of the Borrower to the Administrative Agent as Collateral to secure the Obligations in a manner form reasonably acceptable satisfactory to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.;
Appears in 2 contracts
Sources: First Lien Credit Agreement (WCG Clinical, Inc.), First Lien Credit Agreement (WCG Clinical, Inc.)
Fundamental Changes. MergeBorrower shall not, and shall not permit any other Company to, 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 (a “Fundamental Change”), except that, so long as after giving effect thereto (including the application of any proceeds therefrom to the Obligations) no Default exists:
(a) any Restricted Subsidiary of Borrower may merge with (i) Borrower, provided that Borrower shall be the Borrower continuing or surviving Person, or (including a mergerii) any one or more other Subsidiaries of Borrower, provided that when any Subsidiary Guarantor is merging with another Subsidiary of Borrower, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower Subsidiary Guarantor shall be the continuing or surviving Person or the surviving Person Subsidiary shall expressly assume the obligations of the Borrower in have become a manner reasonably acceptable Subsidiary Guarantor pursuant to the Administrative Agent, or Section 7.15;
(iib) any one Subsidiary of Borrower may Dispose of all or more other Restricted Subsidiariessubstantially all of its assets (upon voluntary liquidation or otherwise) to Borrower or to another Subsidiary of Borrower; provided that when any Restricted Subsidiary that if the transferor in such a transaction is a Loan Party is merging with another Restricted SubsidiarySubsidiary Guarantor, (A) then the transferee must either be Borrower or be or become a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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 formGuarantor;
(c) so long as no Event of Default exists or would result therefrom, in connection with Dispositions by any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be Company permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.028.05;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;in connection with Investments by any Company permitted by Section 8.02; and
(e) the Fundamental Changes which are determined to be necessary for any Subsidiary of Borrower and that has elected to be treated as a REIT, to maintain its Restricted Subsidiaries may consummate status as a mergerREIT, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that so long as (i) if the Borrower no Default is a party thereto, the Borrower shall be the continuing then-occurring or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, would result from such Fundamental Change and (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the upon Administrative Agent’s request, Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable provide to the Administrative Agent, (ii) the Borrower or Agent evidence that such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or Fundamental Change was necessary to ensure such surviving person shall not be a regulated entityREIT status.
Appears in 2 contracts
Sources: Credit Agreement (PMC Commercial Trust /Tx), Credit Agreement (PMC Commercial Trust /Tx)
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 Default exists prior to and/or after giving effect thereto:
(a) any Restricted Subsidiary may merge with (ix) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (iiy) any one or more other Restricted Subsidiaries; , provided that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party the Guarantor shall be the continuing or surviving Person Person, and provided further that, in the case of both clause (x) and (y), any Subsidiary which is an Unrestricted Subsidiary at the time of the applicable merger (1) must meet the criteria set forth in the definition of “Restricted Subsidiary” for conversion to a Restricted Subsidiary immediately prior to the occurrence of the applicable merger and (2) shall be treated in all respects as a Restricted Subsidiary during all periods of determination for purposes of calculating Consolidated Operating Cash Flow;
(b) any Restricted Subsidiary may Dispose of all or substantially all of its assets (Bupon voluntary liquidation or otherwise) to the extent constituting an InvestmentBorrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, such Investment then the transferee must either be an Investment in the Borrower or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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 formGuarantor;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment Dispositions in accordance with the terms of Section 7.02;7.05; and
(d) the Borrower and its Restricted Subsidiaries any Permitted Acquisition permitted by Section 7.07 may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate be structured as a merger, dissolutionconsolidation or amalgamation, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) so long as the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or Loan Party is the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityPerson.
Appears in 2 contracts
Sources: Credit Agreement (Entercom Communications Corp), Credit Agreement (Entercom Communications 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, except that, so long as no 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the such Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is such merger involving a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other wholly owned Subsidiary that is immediately prior to such merger shall not a Loan Party and be permitted unless also permitted by Section 7.02
(iib) any Subsidiary may Dispose of all or substantially all of its assets (other than the Borrowerupon voluntary liquidation or otherwise) may liquidate to a Borrower or dissolve or change its legal formto another Subsidiary;
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person liquidate or dissolve if the Borrower which is the parent of such Subsidiary determines in order to effect an Investment permitted pursuant to Section 7.02, good faith that such liquidation or dissolution is in the designation best interests of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) such Borrower and is not materially disadvantageous to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;Lenders; and
(d) any Financing SPE may sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all of its assets in connection with a Securitization, provided that the proceeds of such Securitization in excess of the amount such Financing SPE is required to pay to any holder of any debt obligation or equity interests issued by such Financing SPE pursuant to the terms of such Securitization are paid to a Borrower promptly thereafter. Notwithstanding the foregoing, none of the Borrowers will, nor will permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by such Borrower and its Restricted Subsidiaries may consummate on the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a mergerdate of execution of this Agreement, dissolution, liquidation businesses reasonably related thereto or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party theretoreasonable extension, development or expansion thereof. It is understood that a Trust Preferred Securities Transaction consummated for purposes of financing the type of business of such Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations Subsidiary as of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws date of the United States or any state thereof and (iii) the Borrower or such surviving person execution of this Agreement shall not be deemed to violate the foregoing restriction. For the avoidance of doubt, the transfer of legal ownership of any Trust Preferred Indebtedness permitted under this Agreement to a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted trustee pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person Trust Preferred Securities Transaction shall not be deemed to be a regulated entitysale, transfer, lease or other disposition of any assets to such trustee.
Appears in 2 contracts
Sources: Credit Agreement (KKR Financial Corp), Credit Agreement (KKR Financial Corp)
Fundamental Changes. MergeThe Top Borrower will not, nor will it permit any of the Restricted Subsidiaries to, directly or indirectly merge, dissolve, liquidate, amalgamate 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, (other than in the case of clause (e) below) so long as no Event of Default would result therefrom:
(ai) any Restricted Subsidiary (other than a Borrower) may merge merge, amalgamate or consolidate with (i1) the a Borrower (including a merger, the purpose of which is to reorganize the such Borrower into a new jurisdiction so long as the Borrower remains organized under the laws in any State of the United States or any state thereof and does not become a regulated entityStates); provided that the such Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the such Borrower in a manner pursuant to documents reasonably acceptable to the Administrative Agent, Agent or (ii2) any one or more other Restricted Subsidiaries; provided provided, further, that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) Subsidiary that is not a Loan Party shall be the continuing or surviving Person or (BA) to the extent constituting an Investment, such Investment must be an Investment permitted hereunder and (B) to the extent constituting a Disposition, such Disposition must be permitted hereunder and (ii) any Borrower may merge, dissolve, liquidate, amalgamate or consolidate with any other Borrower; provided that when any Co-Borrower is merging, dissolving, liquidating, amalgamating or consolidating with another Restricted Subsidiary that is not another Co-Borrower or a Loan Party then either (A) the Co-Borrower shall be the continuing or surviving Person and resident in its jurisdiction of incorporation or Indebtedness (B) (I) the Co-Borrower shall cease to be a Borrower under this Agreement in accordance with Section 12.3, (II) to the extent constituting an Investment, such Investment must be an Investment permitted by Sections 7.02(chereunder, and (III) and 7.03(b)(iv)to the extent constituting a Disposition, respectivelysuch Disposition must be permitted hereunder;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, dissolve, liquidate, 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 any Borrower or any Restricted 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 Borrower Representative determines in good faith that such action is in the best interest of the Top Borrower and its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that in the case of any dissolution of a Restricted Subsidiary that is (A) a Co-Borrower, such Subsidiary shall at or before the time of such dissolution cease to be a Co-Borrower under this Agreement in accordance with Section 12.3 or (B) a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent unless such Investment or Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Restricted Subsidiary that is a Co-Borrower or a Guarantor will remain a Co-Borrower or Guarantor unless such Co-Borrower or Guarantor is otherwise permitted to cease being a Co-Borrower or Guarantor hereunder);
(c) any Restricted Subsidiary (other than the Top Borrower) may liquidate Dispose of all or dissolve substantially all of its assets (upon voluntary liquidation or change otherwise) to the Top Borrower or to any Restricted Subsidiary; provided that if the transferor in such a transaction is (A) a Borrower, then such Subsidiary shall cease to be a Borrower under this Agreement in accordance with Section 12.3 or (B) a Guarantor, then to the extent constituting an Investment, such Investment must be a Permitted Investment and, if applicable, Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Section 7.2, respectively; provided, further, that the Top Borrower may Dispose of all or substantially all of its legal formassets (upon voluntary liquidation or otherwise) to any other Loan Party;
(cd) so long as no Event of Default exists or would result therefromthe Steps Transactions, Permitted Reorganizations and IPO Reorganization Transactions;
(e) any Restricted Subsidiary (other than a Borrower) may merge merge, liquidate, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiaryhereunder; 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 6.126.9, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be an Investment permitted hereunder, (iii) to the extent constituting a Disposition, such Disposition must be permitted Investment hereunder and (iv) to the extent such Restricted Subsidiary is a Co-Borrower, it shall cease to be a Co-Borrower in accordance with Section 7.0212.3;
(df) the Borrower Borrowers and its the other Restricted Subsidiaries may consummate the AcquisitionTransactions;
(eg) the Borrower and its subject to clause (a) above, any Restricted Subsidiaries Subsidiary may consummate a mergermerge, dissolutiondissolve, liquidation liquidate, amalgamate, consolidate with or consolidation, the purpose of which is into another Person in order to effect a Disposition permitted pursuant to Section 7.057.5; provided that (i) if the Borrower such Restricted Subsidiary is a party theretoCo-Borrower, the Borrower it shall cease to be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the a Co-Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityaccordance with Section 12.3; and
(fh) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an any Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall hereunder may be the continuing structured as a merger, consolidation or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityamalgamation.
Appears in 2 contracts
Sources: Incremental and Refinancing Amendment (Powerschool Holdings, Inc.), First Lien Credit Agreement (Powerschool Holdings, Inc.)
Fundamental Changes. MergeThe Borrower will not, dissolve, liquidateand will not permit any Restricted Subsidiary nor any Non-Recourse Pledgor to, consolidate with or into another Personmerge with any other Person or convey, transfer, sell or lease all or substantially all of its assets in a single transaction or series of transactions to any Person except that:
(a) any Restricted Subsidiary the Borrower may consolidate or merge with any other Person or convey, transfer, sell or lease all or substantially all of its assets in a single transaction or series of transactions to any Person, provided that:
(i) the Borrower (including a mergersuccessor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer, sale or lease all or substantially all of the purpose assets of which is to reorganize the Borrower into a new jurisdiction so long as an entirety, as the Borrower remains case may be, is a solvent corporation or limited liability company organized and existing under the laws of the United States or any state thereof (including the District of Columbia), and, if the Borrower is not such corporation or limited liability company, such entity (y) shall have executed and does not delivered to the Administrative Agent its assumption of the due and punctual performance and observance of each covenant and condition of the Loan Documents and (z) shall have caused to be delivered to the Administrative Agent an opinion of independent counsel reasonably satisfactory to the Required Lenders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof (provided that if the Borrower effects a reorganization pursuant to Section 251(g) of the Delaware General Corporation Law, whereby, among other things, the Equity Interests issued by it become owned by a regulated entityholding company, no such opinion shall be required); and
(ii) immediately before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(b) Any Restricted Subsidiary or Non-Recourse Pledgor may (x) merge into the Borrower (provided that the Borrower shall be the continuing or surviving Person or is the surviving Person shall expressly assume the obligations entity) or sell, transfer or lease all or any part of its assets to the Borrower in or a manner reasonably acceptable Restricted Subsidiary or (y) merge into or sell, transfer or lease all or any part of its assets to the Administrative Agenta Restricted Subsidiary, or (iiz) merge or consolidate with, or sell, transfer or lease all or substantially all of its assets to, any one Person in a transaction that is permitted by Section 7.06 or, as a result of which, such Person becomes a Restricted Subsidiary; provided, in each instance set forth in clauses (x) through (z) that, immediately before and after giving effect thereto, there shall exist no Default or more other Restricted Subsidiaries; Event of Default and further provided that when any Restricted (i) a Subsidiary that is a Loan Party is merging with another Restricted SubsidiaryGuarantor may not merge into, or sell all or substantially all of its assets to, (A) a Loan Party shall be the continuing or surviving Person Restricted Subsidiary that is not a Subsidiary Guarantor or (B) to a Person that becomes a Restricted Subsidiary, unless, concurrently therewith such Restricted Subsidiary becomes a party to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted Subsidiary Guaranty and the Security Agreement and the Borrower delivers to the Administrative Agent the documents required by Sections 7.02(c6.09(a)(i) through (iii) in respect of such Restricted Subsidiary and 7.03(b)(iv)(ii) a Non-Recourse Pledgor may not merge into, respectively;
or sell all or substantially all of its assets to, (iA) any a Restricted Subsidiary that is not a Loan Party may merge Non-Recourse Pledgor or consolidate with a Subsidiary Guarantor or into any other (B) to a Person that becomes a Restricted Subsidiary, unless, concurrently therewith such Restricted Subsidiary that is not becomes a Loan Party party to the Security Agreement and the Borrower delivers to the Administrative Agent the documents required by Sections 6.09(b)(i) and (ii) any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form;
(c) so long as no Event in respect of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a such Restricted Subsidiary; provided that (i) . No such conveyance, transfer, sale or lease of all or substantially all of the continuing or surviving Person shall be a Restricted Subsidiary, which together with each assets of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be have the continuing or surviving Person or the surviving Person shall expressly assume the obligations effect of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) releasing the Borrower or any successor corporation that shall theretofore have become such surviving Person shall be organized in the manner prescribed in this Section 7.05 from its liability under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityLoan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Tetra Technologies Inc), Credit Agreement (Tetra Technologies Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a) any Restricted Subsidiary may merge with or liquidate into (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or States, any state thereof or the District of Columbia (the requirements set forth in this clause (i), and does not become a regulated entitythe last proviso of this Section 7.04(a), the “Jurisdictional Requirement”)); provided that the Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) Section 7.02 and 7.03(b)(iv)any Indebtedness corresponding to such Investment must be permitted by Section 7.03; provided further that, respectively;if any such merger results in a new jurisdiction of organization of the Borrower or other Loan Party, the Borrower shall have provided the Administrative Agent with prior written notice of such change in jurisdiction and proper financing statements, duly prepared for filing under the Uniform Commercial Code in such jurisdiction with respect to the Borrower or such Loan Party.
(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 formform if the Borrower determine in good faith that such action is in the best interests of the business of the Borrower;
(c) so long as no Event of Default exists or would result therefrom, the Borrower or any Restricted Subsidiary may merge with any other Person in order to (i) effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 7.02 (provided that (iA) 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 6.12, 6.12 and (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iiiB) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02) or (ii) to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 6.16; provided that if the Borrower is a party to any transaction effected pursuant to this Section 7.04(c), (1) the Borrower shall be the continuing and surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent and (2) the Jurisdictional Requirement shall be satisfied;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;[Intentionally Omitted]; and
(e) the Borrower and its Restricted Subsidiaries may consummate so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected; provided that (i) if the Borrower is a party theretoto any transaction effected pursuant to this Section 7.04(e), (i) the Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, Agent and (ii) the Borrower or such surviving Person Jurisdictional Requirement shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitysatisfied.
Appears in 2 contracts
Sources: Credit Agreement (Universal Hospital Services Inc), Credit Agreement (Universal Hospital Services 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 (including, in each case, pursuant to a Delaware LLC Division), except that:
(a) any Restricted Subsidiary may merge or amalgamate with (i) the Borrower (including a mergerprovided, that, the purpose resulting entity shall succeed as a matter of which is law to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws all of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations Obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentBorrower), or (ii) any one or more other Restricted Subsidiaries; provided that Subsidiaries (provided, that, when any Restricted Subsidiary that is a Loan Party is merging or amalgamating with another Restricted Subsidiary, (A) a Loan Party shall be the a continuing or surviving Person Person, as applicable, or the resulting entity shall succeed as a matter of law to all of the Obligations of such Loan Party) and (iii) in order to consummate a Permitted Tax Restructuring;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party, (ii) (A) any Restricted Subsidiary may liquidate, dissolve or wind up, or (B) any Restricted Subsidiary may change its legal 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 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 another Restricted Subsidiary; provided, that, if the transferor in such a transaction is a Loan Party, then either (i) the transferee must be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be an a permitted Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(i) any of a Restricted Subsidiary that is not a Loan Party may merge or consolidate in accordance with or into any other Subsidiary that is not a Loan Party Section 7.02 and (ii) any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal formSection 7.03, respectively;
(cd) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or amalgamate with any other Person (1) in a transaction in which the Borrower is the continuing or surviving entity of such transaction or (2) in a transaction in which such other Person is the surviving or continuing entity of such transaction (such person, the “Successor Borrower”); provided, that, in the case of this clause (2), (i) such Successor Borrower is organized under the laws of the United States; (ii) such Successor Borrower shall assume the Obligations of the Borrower under the Loan Documents; (iii) each Guarantor shall have confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under the Loan Documents; (iv) each 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 the Loan Documents; (v) if requested by the Administrative Agent, each mortgagor of a Mortgaged 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 the Loan Documents; (vi) the Borrower shall have delivered 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 certifying the compliance with the foregoing;
(e) so long as no Default has occurred and is continuing 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.026.11;
(df) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;[reserved]; and
(eg) the Borrower so long as no Default or Event of Default has occurred and its Restricted Subsidiaries may consummate is continuing or would result therefrom, a merger, amalgamation, dissolution, liquidation winding up, liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if , may be effected. Notwithstanding anything to the contrary contained herein, in no event shall this Section 7.04 permit the Borrower is or any other Loan Party to Dispose of or make any Investment transferring ownership of, or exclusive rights in, any Material Intellectual Property in or to any Person other than a party thereto, Loan Party or the Equity Interests of any such Person that owns any Material Intellectual Property to any other Person other than the Borrower shall be or any other Loan Party, other than the continuing or surviving Person non-exclusive licensing of such Material Intellectual Property in the ordinary course of business or the surviving Person shall expressly assume exclusive licensing of such Material Intellectual Property in the obligations ordinary course of business to the extent such exclusive license does not interfere in any material respect with the ordinary conduct of the business of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityits Restricted Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (ServiceTitan, Inc.), Credit Agreement (ServiceTitan, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a) No Loan Party shall, nor shall it permit any Restricted Subsidiary of its Material Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), unless it is a Permitted Acquisition; provided that J▇▇▇▇ River UK may dissolve or merge with the Parent so long as each and all of the following is satisfied: (i) the Borrower Parent shall have delivered to the Administrative Agent written notice of such merger or dissolution and the intended date of consummation thereof at least twenty (including 20) Business Days in advance of such intended date of consummation, (ii) such notice is accompanied with copies of the definitive documentation that will effect such merger or dissolution, (iii) no Default exists on the date of such notice and on the date of such consummation, (iv) after giving effect to such merger or dissolution, the Parent shall own 100% of all of the issued and outstanding Equity Interests of each of J▇▇▇▇ River and any other Person that is then a Subsidiary of J▇▇▇▇ River UK, (v) in the case of a merger, the purpose of which Parent is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person Person, (vi) the Parent shall expressly assume the obligations of the Borrower in a manner reasonably acceptable have caused to be delivered to the Administrative AgentAgent and the Lenders such opinions of counsel as the Administrative Agent may reasonably request, and (vii) the Administrative Agent shall not have received from the Required Lenders on or before three (3) Business Days prior to such intended date of consummation written notice that such Required Lenders have determined in their good faith judgment that such merger or dissolution impairs or otherwise adversely affects any right or interest of the Lenders hereunder or under any other Loan Document.
(b) No Loan Party shall, nor shall it permit any of its Subsidiaries to, make any Acquisition or otherwise acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person except for (i) purchases of inventory and other property to be sold or used in the ordinary course of business, (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Assumed Reinsurance in the ordinary course of business, (iii) Investments permitted under Section 6.04, (iv) capital expenditures in the ordinary course of business, and (v) Permitted Acquisitions.
(c) No Loan Party is merging shall, nor shall it permit any of its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or a substantial part of its business or Property, whether now owned or hereafter acquired.
(d) Notwithstanding the foregoing provisions of this Section 6.03:
(i) any Subsidiary may be merged or consolidated with another Restricted Subsidiary, or into: (A) a Loan Party if such Loan Party shall be the continuing or surviving Person company or (B) to any other Subsidiary; provided that if any such transaction shall be between a Subsidiary and a Wholly Owned Subsidiary, the extent constituting an Investment, such Investment must Wholly Owned Subsidiary shall be an Investment in the continuing or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelysurviving company;
(iii) any Material Subsidiary that is not may sell, lease, transfer or otherwise dispose of any or all of its property (upon voluntary liquidation or otherwise) to a Loan Party or a Wholly Owned Subsidiary of a Loan Party; and
(iii) any Material Subsidiary may merge or consolidate with or into any other acquire the business, property or Equity Interests and Equity Rights of another Person if (A) both immediately prior to and after giving effect to such merger, consolidation or acquisition, no Default exists, (B) after giving pro forma effect (pursuant to accounting procedures satisfactory to the Administrative Agent) to such merger, consolidation or acquisition, the Leverage Ratio as of the Fiscal Quarter most recently ended shall not be greater than 0.35 to 1, (C) in the case of an acquisition of Equity Interests and Equity Rights, such Material Subsidiary that is not a Loan Party acquires 100% of the issued and outstanding Equity Interests and Equity Rights of such Person and (iiD) any Subsidiary (other than in the Borrower) may liquidate or dissolve or change its legal form;
(c) so long as no Event of 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, the designation case of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation merger or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower surviving entity is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Wholly Owned Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityLoan Party.
Appears in 2 contracts
Sources: Credit Agreement (James River Group Holdings, Ltd.), Credit Agreement (James River Group Holdings, Ltd.)
Fundamental Changes. Merge, dissolve, liquidate, The Borrower may not (1) consolidate or merge with or into another Person (whether or not the Borrower is the surviving Person); or (2) sell, except thatassign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole, in one or more related transactions to another Person; unless:
(a) any Restricted Subsidiary may merge with either: (i) the Borrower is the surviving Person; or (including ii) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains Person organized or existing under the laws of the United States States, any state of the United States, the District of Columbia or any state territory thereof and does not become a regulated entity); provided that (the Borrower shall be or such Person, as the continuing or surviving Person or case may be, being herein called the surviving Person shall expressly assume “Successor Borrower”);
(b) the Successor Borrower (if other than the Borrower) assumes all the obligations of the Borrower under this Agreement and the other Loan Documents to which it is a party by executing a joinder or one or more other documents or instruments in a manner form reasonably acceptable satisfactory to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as immediately after such transaction no Default or Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02exists;
(d) immediately after giving pro forma effect to such transaction and any related financing transactions, as if the same had occurred at the beginning of the applicable four-quarter period, either
(i) the Successor Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 8.1(a); or
(ii) the Fixed Charge Coverage Ratio for the Successor Borrower and its Restricted Subsidiaries would be equal to or greater than such ratio for the Borrower and its Restricted Subsidiaries may consummate the Acquisitionimmediately prior to such transaction;
(e) each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to any such consolidation or merger that does not survive or become the Successor Borrower) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guarantee; and 1004254246v19
(f) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Security Agreement in connection with such transaction and (y) any party to any such consolidation or merger that does not survive or become the Successor Borrower) shall have by a supplement to the Security Agreement or another document or instrument in form reasonably satisfactory to the Administrative Agent affirmed that its obligations thereunder shall apply to its Guarantee as confirmed pursuant to clause (e) above; provided that, for the purposes of this Section 8.6 only, neither a Music Publishing Sale nor a Recorded Music Sale will be deemed to be a sale, assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole. For the avoidance of doubt, (1) the Borrower may therefore consummate a Music Publishing Sale in accordance with Section 8.3 without complying with this Section 8.6 notwithstanding anything to the contrary in this Section 8.6, (2) the Borrower may therefore consummate a Recorded Music Sale in accordance with Section 8.3 without complying with this Section 8.6 notwithstanding anything to the contrary in this Section 8.6 and (3) the determination in the preceding proviso shall not affect the determination of what constitutes all or substantially all the assets of the Borrower under any other contract to which the Borrower is a party. For the purpose of this Section 8.6, with respect to any sale, lease, transfer, conveyance or other disposition of properties or assets in connection with any acquisition (including any acquisition by means of a merger or consolidation with or into the Borrower or any Restricted Subsidiary), the determination of whether such sale, lease, transfer, conveyance or disposition constitutes a sale of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole shall be made on a pro forma basis giving effect to such acquisition. This Section 8.6 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Borrower and its Restricted Subsidiaries. Notwithstanding the foregoing clauses (c) and (d), (x) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Borrower or to another Restricted Subsidiary and (y) the Borrower may merge with an Affiliate incorporated solely for the purpose of reincorporating the Borrower in another state of the United States so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityincreased thereby.
Appears in 2 contracts
Sources: Incremental Commitment Amendment (Warner Music Group Corp.), Incremental Commitment Amendment (Warner Music Group Corp.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another into, or 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 with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Default or Event of Default exists or would result therefrom, therefrom and subject to Section 7.20:
(a) any Restricted Subsidiary may merge with or transfer substantially all its assets (upon voluntary liquidation or otherwise) to any other Person in order to effect an Investment permitted pursuant to Section 7.02Guarantor, provided that, if a merger, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) applicable Guarantor shall be the continuing or surviving Person Person, and provided further that if a transfer of assets in the form of a sale by a Subsidiary that is not a Guarantor, the sale shall be a Restricted Subsidiary, which together at fair market value and the aggregate amount of all such sales shall not exceed $10,000,000;
(b) any Subsidiary substantially all of whose assets consist of Subsidiary Securities or other Equity Securities in any Person may merge with each of or transfer substantially all its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, assets (iiupon voluntary liquidation or otherwise) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16Borrower, or (iii) to the extent constituting an Investmentprovided that, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate if a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person Person, and provided further that if a transfer of assets in the form of a sale by a Subsidiary that is not a Guarantor, the sale shall be at fair market value and the aggregate amount of all such sales shall not exceed $10,000,000;
(c) any Subsidiary that is not a Guarantor may merge with or the surviving Person shall expressly assume the obligations of the Borrower in sell substantially all its assets (upon voluntary liquidation or otherwise) to any one or more Subsidiaries that is not a manner reasonably acceptable Guarantor; and
(d) any Subsidiary may, upon not less than fifteen (15) days prior written notice to the Administrative Agent, be reincorporated in another jurisdiction or reorganized as a limited liability company, provided that the Borrower shall, and shall cause the applicable Subsidiary to (i) provide appropriate supplements to the information furnished with respect to such Subsidiary and otherwise comply with the requirements of Section 2A.03, and (ii) provide such further agreements, documents and assurances, and take such other action, as may be reasonably requested by the Borrower Administrative Agent to perfect or such surviving Person shall be organized under maintain the laws perfection and priority (and receive assurances thereof) of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations Lien of the Borrower Administrative Agent in the Collateral; provided, however, no Domestic Subsidiary may reincorporate to a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall jurisdiction that would render it not be a regulated entityDomestic Subsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Jarden Corp), Credit Agreement (Jarden Corp)
Fundamental Changes. Merge(a) The Parent will not, dissolveand will not permit the Borrower or any Subsidiary (other than NMTC Subsidiaries to the extent not reasonably expected to result in a Material Adverse Effect) to, liquidate, merge into or consolidate with any other Person, or permit any other Person to merge into another Personor consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, provided that both immediately before and after giving effect thereto, no Event of Default shall or would exist:
(a) any Restricted Subsidiary may merge with (i) the Borrower Parent may merge or consolidate with any Person, provided that (including a mergerA) the Parent shall be the surviving entity thereof, (B) the Parent shall have satisfied the notice requirements in Section 6.1(e) with respect thereto, and (C) immediately after giving effect thereto, the purpose Loan Parties shall be in compliance on a pro forma basis with all Financial Covenants as of which is to reorganize the most recent fiscal quarter end (assuming, for purposes of the Financial Covenants, that all mergers, acquisitions and dispositions consummated since the first day of such fiscal quarter, had occurred on the first day of such fiscal quarter);
(ii) the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States may merge or consolidate with any state thereof and does not become a regulated entity); Subsidiary Guarantor, provided that the Borrower shall be the continuing surviving entity;
(iii) the Borrower may merge or surviving Person or consolidate with any other Person, provided that (A) the Borrower shall be the surviving Person entity, (B) the Parent shall expressly assume have satisfied the obligations requirements in Section 6.1(e) with respect thereto, and (C) immediately after giving effect thereto, the Loan Parties shall be in compliance on a pro forma basis with all Financial Covenants as of the most recent fiscal quarter end (assuming, for purposes of the Financial Covenants, that all mergers, acquisitions and dispositions consummated since the first day of such fiscal quarter, had occurred on the first day of such fiscal quarter);
(A) any Subsidiary may merge or consolidate with or into the Borrower in a manner reasonably acceptable to transaction in which the Administrative AgentBorrower is the surviving Person, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to any Subsidiary Guarantor may merge or consolidate with or into any Subsidiary in a transaction in which a Subsidiary Guarantor is the extent constituting an Investmentsurviving Person, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(iC) any Excluded Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary (including another Excluded Subsidiary) in a transaction in which such other Subsidiary is the surviving Person;
(v) any Subsidiary may merge or consolidate with any other Person, provided that (A) immediately after giving effect thereto, no Default shall or would exist, and (B) either (1)(a) such Subsidiary is the surviving Person, and (b) such merger or consolidation is not a Loan Party prohibited by Section 7.5, or (2)(a) such other Person is the surviving Person, and (b)(i) such merger or consolidation is not prohibited by Section 7.7, or (ii) any Subsidiary (other than the Borrower) may liquidate such merger or dissolve or change its legal form;
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with any consolidation is not prohibited by Section 7.5 and such other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of shall become a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment Guarantor in accordance with Section 7.026.11;
(dvi) (A) the Parent may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (other than Equity Interests in the Borrower) to any Person, (B) 1821445.29\C072091\0303228 the Borrower may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to any Subsidiary Guarantor, (C) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to any other Subsidiary Guarantor (upon voluntary liquidation or dissolution or otherwise), and (D) any Excluded Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its Restricted Subsidiaries may consummate assets to the AcquisitionBorrower or any Subsidiary (upon voluntary liquidation or dissolution or otherwise);
(evii) the Borrower and any Subsidiary may sell, transfer, lease or otherwise dispose of its Restricted Subsidiaries may consummate assets in a mergertransaction that is not otherwise permitted by this Section 7.3(a), dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower such sale, transfer, lease or other disposition is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitypermitted by Section 7.7; and
(fviii) any Subsidiary may liquidate, wind up or dissolve so long as (A) the Borrower may merge with assets of any such Subsidiary that is a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant Guarantor are transferred to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or another Subsidiary Guarantor, or (B) the assets of any such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) Subsidiary that is an Excluded Subsidiary are transferred to the Borrower or such surviving person a Subsidiary.
(b) The Parent will not, and will not permit any subsidiary thereof (other than NMTC Subsidiaries to the extent not reasonably expected to result in a Material Adverse Effect) to, engage in any business other than businesses of the type conducted by the Parent, the Borrower and the Subsidiaries on the Fourth Restatement Closing Date and businesses which are now, or which in the future shall not be have become, reasonably related thereto or a regulated entityreasonable extension thereof.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (General Communication Inc), Credit and Guarantee Agreement (Gci Inc)
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, so long as (other than in the case of clause (e) below) no Event of Default would result therefrom:
(a) any Restricted Subsidiary (or any other Person) 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 the Borrower remains organized under the laws in any State of the United States or any state thereof and does not become a regulated entityof America); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner pursuant to documents reasonably acceptable to the Administrative Agent, Agent or (ii) any one or more other Restricted Subsidiaries; provided that when any Guarantor is merging or amalgamating with another Restricted Subsidiary that is not a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party the Guarantor shall be the continuing or surviving Person or Person, (B) to the extent constituting an Investment, such Investment must be an a permitted Investment in or Indebtedness permitted by of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02(c7.02 (other than Section 7.02(e)) and 7.03(b)(iv)7.03, respectivelyrespectively and (C) to the extent constituting a Disposition, 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 Restricted Subsidiary may liquidate or dissolve, or the Borrower or any Restricted 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 Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries taken as a whole and is not disadvantageous to the Lenders in any material respect (it being understood that in the case of any liquidation or dissolution of a Restricted Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such liquidation or dissolution transfer its assets to another Restricted Subsidiary that is a Loan Party unless such Disposition of assets is permitted hereunder (other than pursuant to Section 7.05(d)(A)); and in the Borrower) may liquidate or dissolve or case of any change its in legal form, a Restricted Subsidiary that is a Loan Party will remain a Loan Party unless such Loan Party is otherwise permitted to cease being a Loan Party hereunder);
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to any Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Loan Party and (ii) to the extent constituting an Investment, such Investment must be permitted by Section 7.02 (other than Section 7.02(e));
(d) any Restricted Subsidiary may merge, amalgamate or consolidate with, or dissolve into, any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary7.02 (other than Section 7.02(e)); 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
7.02 (dother than Section 7.02(e)) and (iii) to the Borrower and its Restricted Subsidiaries may consummate the Acquisitionextent constituting a Disposition, such Disposition must be permitted hereunder;
(e) the Borrower and any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person or Dispose of all or substantially all of its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is assets in order to effect a Disposition permitted pursuant to Section 7.05; provided that 7.05 (iother than Section 7.05(d)(A));
(f) if the Borrower is any Investment permitted by Section 7.02 (other than Section 7.02(e)) may be structured as a party theretomerger, the Borrower shall be the continuing consolidation or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, amalgamation;
(iig) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityRestricted Subsidiary may consummate any Permitted Restructuring Transaction; and
(fh) the Borrower may merge a transaction in compliance with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized 10.24 under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitythis Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Visteon Corp), Credit Agreement (Visteon 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 a Material Portion 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) 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that when any Restricted wholly-owned Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party the wholly-owned Subsidiary shall be the continuing or surviving Person Person; and
(b) any Subsidiary may Dispose of all or a Material Portion of its assets (Bupon voluntary liquidation or otherwise) to the extent constituting an InvestmentBorrower or to another Subsidiary; provided that if the transferor in such a transaction is a wholly-owned Subsidiary, such Investment then the transferee must either be an Investment in the Borrower or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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 formwholly-owned Subsidiary;
(c) so long as no Event the Borrower or any of Default exists its Subsidiaries may consolidate or would result therefrom, any Restricted Subsidiary may merge with another corporation or entity, and a Person may consolidate with or merge into the Borrower or any other Person in order to effect an Investment permitted pursuant to Section 7.02of its Subsidiaries, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (ix) if the Borrower is merger involves a party theretoSubsidiary but does not involve the Borrower, a Subsidiary shall be the ultimate surviving entity, and (y) if the merger involves the Borrower, the Borrower shall be the continuing or ultimate surviving Person or entity, and (z) in each such case (i) the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person entity shall be after the merger a solvent corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, (ii) immediately after giving effect to such transaction and treating any state thereof Indebtedness which becomes an obligation of the Borrower or a Subsidiary as a result of such transaction as having been incurred by the Borrower or such Subsidiary at the time of such transaction, no Event of Default or Default shall have happened and be continuing, and (iii) if the merger or consolidation involves the Borrower, the Borrower has delivered to the Administrative Agent a certificate signed by a Responsible Officer and an opinion of counsel, each stating that such consolidation or merger complies with this Section 7.03 and such surviving person certificate shall additionally state that, in the opinion of the board of directors of the Borrower, the transaction is in the interest of the Borrower; provided, however, that the Borrower shall not be a regulated entity; and
(f) the Borrower may merge with convey or transfer any assets to a Subsidiary of Holdings solely for the purpose of effecting an Investment permitted pursuant improving the credit position of such Subsidiary in order to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable enable it to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityborrow money.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Oneok Inc /New/), 364 Day Credit Agreement (Oneok Inc /New/)
Fundamental Changes. Merge(a) Liquidate or dissolve; (b) consummate, dissolveor permit any of Borrower’s Subsidiaries to consummate, liquidateany Change of Control; or (c) acquire, consolidate with or into permit any of Borrower’s Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person, except that:
(a) any Restricted Subsidiary unless such acquisition is permitted pursuant to Section 6.14(a). Notwithstanding anything to the contrary in this Section 6.4, Borrower may merge with consummate a transaction that will constitute a Change of Control so long as: (i) the Borrower Person that results from such Change of Control (including a mergerthe “Surviving Entity”) shall have executed and delivered to Lender an agreement in form and substance reasonably satisfactory to Lender, containing an assumption by the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws Surviving Entity of the United States due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of Borrower in the Loan Documents; (ii) all such obligations of the Surviving Entity to Lender shall be guaranteed by any Person that directly or indirectly owns or controls 50% or more of the voting stock of the Surviving Entity; (iii) immediately after giving effect to such Change of Control, no Event of Default or, event which with the lapse of time or giving of notice or both, would result in an Event of Default shall have occurred and be continuing; (iv) the credit risk to Lender, in its sole discretion, with respect to the Obligations and the Collateral shall not be increased; and (v) Borrower shall have provided to Lender notice of any state thereof Change in Control transaction no later than ten (10) days after entering into such transaction. In determining whether the proposed Change of Control would result in an increased credit risk, Lender may consider, among other things, changes in Borrower’s management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of intellectual property rights which may reasonably be anticipated as a result of the Change of Control. In addition, (i) a Subsidiary may merge or consolidate into another Subsidiary and does not become a regulated entity); (ii) Borrower may consolidate or merge with any of Borrower’s Subsidiaries provided that the Borrower shall be is the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityPerson.
Appears in 2 contracts
Sources: Loan and Security Agreement (Rani Therapeutics Holdings, Inc.), Loan and Security Agreement (Rani Therapeutics 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 (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary of the Borrower 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 the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted SubsidiariesSubsidiaries of the Borrower; provided that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiarya Non-Loan Party, (A) a Loan Party Subsidiary Guarantor shall be the continuing or surviving Person or (B) to unless the extent constituting an Investment, such resulting Investment must made in connection with Subsidiary Guarantor merging with a Non-Loan Party shall otherwise be an a Restricted Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelySection 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, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders (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 Subsidiary of the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary of the Borrower; provided that if the transferor in such a transaction is the Borrower or a Subsidiary Guarantor, then (i) the transferee must be the Borrower or a Subsidiary Guarantor or (ii) to the extent constituting an Investment, such Investment must be a Restricted Investment permitted by Section 7.06 or a Permitted Investment;
(d) so long as no Default 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 Company”), (A) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof, or the District of Columbia, (B) the Successor 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 confirmed that its Guarantee shall apply to the Successor Company’s obligations under the 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 Company’s obligations under the Loan Documents and (E) the Borrower shall have delivered to the Administrative Agent (1) 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 (2) all documentation and other information requested by the Administrative Agent or any Lender that is required under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; provided, further, that if the foregoing are satisfied, the Successor 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 the Borrower or a Subsidiary), any Restricted Subsidiary of the Borrower may merge merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of 7.06 or a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted SubsidiaryPermitted Investment; provided that (i) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary of the Borrower, which together with each of its Restricted the Borrower’s Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) 6.11 to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) required pursuant to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02Collateral and Guarantee Requirement;
(df) the Borrower and its Restricted Subsidiaries may consummate the Acquisition[reserved];
(eg) the Borrower so long as no Event of Default has occurred and its Restricted Subsidiaries may consummate is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 2 contracts
Sources: First Amendment to Credit Agreement (Portillo's Inc.), First Amendment to Credit Agreement (Portillo's 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary of either Borrower may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing REIT Guarantor or surviving Person shall be a Restricted SubsidiaryBorrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party theretoREIT Guarantor or such Borrower, the Borrower as applicable, shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the any one or more other Subsidiaries of either Borrower, provided that if any Subsidiary Guarantor is merging or consolidating with another Subsidiary of a Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall that is not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for Guarantor, the purpose of effecting an Investment permitted pursuant Subsidiary Guarantor party to Section 7.02; provided that (i) the Borrower such merger or consolidation shall be the continuing or surviving Person;
(b) so long as no Event of Default exists or would result therefrom, any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Borrower or another Subsidiary, provided that if the transferor in such a transaction is a Subsidiary Guarantor, then the transferee must be a Subsidiary Guarantor or a Borrower;
(c) any Subsidiary (other than a Borrower) may merge with or into, consolidate with or amalgamate with any Person in order to consummate an Investment permitted by Section 7.02 or a Disposition not prohibited by Section 7.05;
(d) so long as no Event of Default exists or would result therefrom, any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Person other than a Borrower or another Subsidiary, provided that immediately upon giving effect to such Disposition, the surviving Person Credit Parties shall expressly assume be in compliance, on a pro forma basis, with the obligations provisions of Section 7.10 (in the case of Sections 7.10(c), (f) and (g), on a Pro Forma Basis); and
(e) any Subsidiaries may liquidate, wind-up or dissolve if the Borrower determines in good faith that such liquidation, winding up or dissolution is in the best interests of the Borrower in a manner reasonably acceptable Credit Parties and is not materially disadvantageous to the Administrative AgentLenders. Notwithstanding anything to the contrary contained herein, (ii) in no event shall the REIT Guarantor, Intermediate Subsidiary Guarantors, if any or either Borrower be permitted to engage in any transaction pursuant to which it is reorganized or such surviving Person shall be organized under the laws reincorporated in any jurisdiction other than a state of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityDistrict of Columbia.
Appears in 2 contracts
Sources: Credit Agreement (Sabra Health Care REIT, Inc.), Credit Agreement (Sabra Health Care REIT, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into, or 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 or enter into another Personany Joint Venture, except that, so long as no Default or Event of Default exists at the time or would occur as a result thereof:
(ai) any Restricted Subsidiary may merge with (iA) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (iiB) any one or more other Restricted Subsidiaries; , provided that that, 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, provided further that any Material Domestic Subsidiary may only merge with another Subsidiary that is at the time a Guarantor, or (AC) a Loan Party any other Person, provided that (1) the Subsidiary shall be the continuing or surviving Person or (B) to the extent constituting an Investmentimmediately upon such merger, such Investment must be an Investment in consolidation or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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 7.02combination, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each wholly-owned Subsidiary of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, Borrower and (ii2) to the extent required by Section 2.12, the purpose surviving entity in such merger executes and delivers a Guaranty concurrently upon the effectiveness of such transaction is merger; and (ii) in connection with the Specified Acquisition and pursuant to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted the Specified Acquisition Agreements, Alpha Merger Sub may merge with MDA, with MDA being the surviving Person, provided that, to the extent required by Section 6.162.12, MDA or any subsidiary of MDA executes and delivers a Guaranty concurrently upon the effectiveness of such merger;
(iiib) any Subsidiary may sell all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent constituting an InvestmentBorrower or to another Subsidiary; provided that, if the seller in such Investment a transaction is a wholly-owned Subsidiary, then the purchaser must either be the Borrower or a permitted Investment wholly-owned Subsidiary; provided further that, if the seller in accordance with Section 7.02;such a transaction is a Material Domestic Subsidiary, then the purchaser must either be the Borrower or another Material Domestic Subsidiary; and
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (iic) the Borrower or such surviving any of its Subsidiaries may enter into any Joint Venture or partnership with any Person shall be organized under in the laws Ordinary Course of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityBusiness.
Appears in 2 contracts
Sources: Credit Agreement (Arthrocare Corp), Credit Agreement (Arthrocare Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a) Neither the Company nor any Restricted Subsidiary may Borrower shall merge or consolidate with any other Person or Dispose of all or substantially all of its assets to any Person unless (iA) no Event of Default shall be continuing after giving effect to such transaction and (B)(x) such Borrower shall be the continuing entity or (y)
(1) the Borrower (including a mergerPerson formed by or surviving such merger or consolidation, or the purpose transferee of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains such assets, shall be an entity organized or existing under the laws of the United States States, any state thereof, or the District of Columbia (or, in the case of any Subsidiary Borrower organized outside of the United States, the jurisdiction of incorporation of such Subsidiary Borrower or any state thereof and does not become a regulated entity); provided other Foreign Subsidiary Borrower) that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume assumes all the obligations of such Borrower under the Borrower in Loan Documents pursuant to a manner reasonably acceptable supplement or amendment to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner Documents reasonably acceptable satisfactory to the Administrative Agent, (2) the Company and, during any Reinstated Guarantee Period, each Subsidiary Guarantor shall have reaffirmed its obligations under the Loan Documents and (3) the Administrative Agent shall have received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the Administrative Agent and consistent with the opinions delivered on the Closing Date with respect to such Borrower; provided, that, so long as no Obligations are owed (or in the case of Letters of Credit, as long as such Obligations are Collateralized) by the applicable Subsidiary Borrower, the Company may elect for such Subsidiary to cease to be a “Borrower” hereunder pursuant to Section 10.1(d) hereof and, thereafter, such Subsidiary shall not be subject to the restrictions contained in this paragraph.
(b) During any Reinstated Guarantee Requirement Period, no Subsidiary that is a Subsidiary Guarantor shall merge or consolidate with any other Person or dispose of all or substantially all of its assets to any Person unless (i) the Company or a Subsidiary Guarantor shall be the continuing entity or shall be the transferee of such assets, (ii) (A) the Borrower Person formed by or surviving such surviving Person merger or consolidation, or the transferee of such assets, shall be an entity organized or existing under the laws of the United States or States, any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person thereof, or the surviving Person shall District of Columbia that expressly assume assumes all the obligations of such other Subsidiary Guarantor under the Borrower in Loan Documents pursuant to a manner supplement or amendment to each applicable Loan Document reasonably acceptable satisfactory to the Administrative Agent, (iiB) the Borrower or such surviving Person Company and each then-remaining Loan Party shall be organized have reaffirmed its obligations under the laws Loan Documents and (C) the Administrative Agent shall have received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the United States Administrative Agent and, if applicable, consistent with the opinions delivered on the Closing Date with respect to such Loan Party, or any state thereof and (iii) the Borrower or such surviving person shall in connection with an asset sale not be a regulated entityprohibited by Section 7.3.
Appears in 2 contracts
Sources: Revolving Credit Agreement (General Motors Financial Company, Inc.), 3 Year Revolving Credit Agreement (General Motors Financial Company, 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) so long as no Event of Default shall have occurred and be continuing or would result therefrom, 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party Subsidiary Guarantor shall be the continuing or surviving Person or (B) and, if the merger involves a change in ownership of any Collateral, then, after giving effect to the extent constituting an Investmentsuch merger, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyproperty shall continue to constitute Collateral;
(b) so long as no Event of Default shall have occurred and be continuing or would result therefrom, any Subsidiary may Dispose of all or substantially all of its assets to the Borrower or to another Subsidiary (other than by way of dissolution, voluntary liquidation or a similar transaction); provided that (i) any Subsidiary that is not immediately after giving effect to such Disposition, the Loan Parties are in compliance, on a Loan Party may merge or consolidate Pro Forma Basis, with or into any other Subsidiary that is not a Loan Party the provisions of Section 7.11 and (ii) if any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form;property subject to such Disposition constitutes Collateral, then, after giving effect to such Disposition, such property shall continue to constitute Collateral; and
(c) so long as no Event of Default exists shall have occurred and be continuing or would result therefrom, any Restricted Subsidiary may merge with any other Person in order transfer all or substantially all of its assets to effect an Investment permitted pursuant the Borrower or to Section 7.02another Subsidiary by way of dissolution, the designation of voluntary liquidation or a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiarysimilar transaction; provided that (i) immediately after giving effect to such dissolution or liquidation or similar transaction, the continuing or surviving Person shall be Loan Parties are in compliance, on a Restricted SubsidiaryPro Forma Basis, which together with each of its Restricted Subsidiaries, shall have complied with the requirements provisions of Section 6.12, 7.11 and (ii) if such Subsidiary is a Subsidiary Guarantor (other than ▇▇▇▇▇ Court-T (US), LLC, to which this clause (c)(ii) shall not apply), it owns no Equity Interests or other assets at the extent the purpose of time such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which similar transaction is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityconsummated.
Appears in 2 contracts
Sources: Credit Agreement (NorthStar Realty Europe Corp.), Credit Agreement (NorthStar Realty Europe Corp.)
Fundamental Changes. MergeNo Borrower will, nor will it permit any Material Subsidiary to (x) merge, dissolve, liquidate, consolidate or amalgamate with or into another PersonPerson or (y) sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of AHL and its Subsidiaries or Athene Life Re and its Subsidiaries, in each case, taken as a whole, to any Person (other than the replacement of assets in its investment portfolio), except that:
(ai) any Restricted Borrower or Material Subsidiary may merge merge, consolidate or amalgamate with (i) the any one or more other Borrowers or Subsidiaries, provided that when a Borrower (including is merging with a mergerSubsidiary that is not a Borrower, the purpose continuing or surviving Person shall be a Borrower or, if the continuing or surviving Person is not a Borrower, the continuing or surviving Person shall assume the obligations of which such Borrower under this Agreement and shall become a Borrower; provided that in respect of each Person who becomes a Borrower after the Effective Date (x) unless such Person is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of Bermuda, the Cayman Islands, the United Kingdom (or any political subdivision thereof), any jurisdiction within the United States (or any state thereof state, territory or political subdivision thereof) or any jurisdiction where any then-existing Borrower is organized, the Lenders shall have consented to the jurisdiction of organization of such Person and does (y) the Borrowers shall have provided (or caused to be provided) a customary joinder to this Agreement, pursuant to which such Person assumes all of the rights, duties and obligations of a “Borrower” hereunder, and other customary documentation reasonably requested by the Administrative Agent and consistent with the documentation delivered under Sections 4.01(a)(ii), (iii), (iv), (v), (vi), (viii) (including a Beneficial Ownership Certification and documentation and other information reasonably requested by the Lenders in writing required in order to comply with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, with respect to such Person) and (ix) with respect to such Person (and modified as appropriate for the jurisdiction of organization of the applicable Subsidiary);
(ii) subject to no Event of Default under Section 8.01(a), 8.01(c) (solely as it relates to Section 7.09) or 8.01(f) then existing or that would result therefrom (in each case, determined as of the date of the definitive agreement with respect thereto), any Borrower or Material Subsidiary may merge, consolidate or amalgamate with any Person to consummate a transaction not become a regulated entity)prohibited by this Agreement; provided that in the case of a merger, consolidation or amalgamation of a Borrower with a Person that is not a Borrower, such Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agentor, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be if the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the such Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person and shall be or become a Subsidiary of AHL and become a Borrower; provided that in respect of each Person who becomes a Borrower after the Effective Date (x) unless such Person is organized under the laws of Bermuda, the Cayman Islands, the United Kingdom (or any political subdivision thereof), any jurisdiction within the United States (or any state thereof state, territory or political subdivision thereof) or any jurisdiction where any then-existing Borrower is organized, the Lenders shall have consented to the jurisdiction of organization of such Person and (y) the Borrowers shall have provided (or caused to be provided) a customary joinder to this Agreement, pursuant to which such Person assumes all of the rights, duties and obligations of a “Borrower” hereunder, and other customary documentation reasonably requested by the Administrative Agent and consistent with the documentation delivered under Sections 4.01(a)(ii), (iii), (iv), (v), (vi), (viii) (including a Beneficial Ownership Certification and documentation and other information reasonably requested by the Lenders in writing required in order to comply with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, with respect to such Person) and (ix) with respect to such Person (and modified as appropriate for the jurisdiction of organization of the applicable Subsidiary).
(iii) subject to no Event of Default under Section 8.01(a), 8.01(c) (solely as it relates to Section 7.09) or 8.01(f) then existing or that would result therefrom (in each case, determined as of the date of the definitive agreement with respect thereto), any Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower Material Subsidiary may merge or consolidate with any Person to consummate a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02sale, transfer, lease or other disposition not otherwise prohibited by this Agreement; provided that such sale, transfer, lease or other disposition does not constitute a sale, transfer, lease or other disposition of all or substantially all of the assets of AHL and its Subsidiaries or Athene Life Re and its Subsidiaries, in each case, taken as a whole as applicable;
(iiv) all or substantially all of the assets of AHL and its Subsidiaries (upon voluntary liquidation or dissolution or otherwise) may be sold, transferred, leased or otherwise disposed of to any Borrower or Subsidiary; provided that if the transferor in such a transaction is a Borrower, then the transferee shall be the continuing or surviving Person another Borrower (or the surviving Person transferee shall expressly assume the obligations of such Borrower under this Agreement and shall become a Borrower provided that in respect of each Person who becomes a Borrower after the Borrower in a manner reasonably acceptable to the Administrative Agent, Effective Date (iix) the Borrower or unless such surviving Person shall be is organized under the laws of Bermuda, the Cayman Islands, the United Kingdom (or any political subdivision thereof), any jurisdiction within the United States (or any state thereof state, territory or political subdivision thereof) or any jurisdiction where any then-existing Borrower is organized, the Lenders shall have consented to the jurisdiction of organization of such Person and (iiiy) the Borrowers shall have provided (or caused to be provided) a customary joinder to this Agreement, pursuant to which such Person assumes all of the rights, duties and obligations of a “Borrower” hereunder, and other customary documentation reasonably requested by the Administrative Agent and consistent with the documentation delivered under Sections 4.01(a)(ii), (iii), (iv), (v), (vi), (viii) (including a Beneficial Ownership Certification and documentation and other information reasonably requested by the Lenders in writing required in order to comply with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, with respect to such Person) and (ix) with respect to such Person (and modified as appropriate for the jurisdiction of organization of the applicable Subsidiary).);
(v) any Borrower may liquidate or dissolve so long as such assets are sold, transferred, leased or otherwise disposed of to (a) a Borrower that is obligated (including by Guaranty) in respect of all Obligations of such liquidating or dissolving Borrower (or such Borrower shall assume the Obligations of such liquidating or dissolving Borrower pursuant to a written agreement reasonably satisfactory to the Administrative Agent) or (b) to another Subsidiary of the Borrowers that shall assume the obligations of such liquidating or dissolving Borrower under this Agreement and shall become a Borrower provided that in respect of each Person who becomes a Borrower after the Effective Date (x) unless such Person is organized under the laws of Bermuda, the Cayman Islands, the United Kingdom (or any political subdivision thereof), any jurisdiction within the United States (or any state, territory or political subdivision thereof) or any jurisdiction where any then-existing Borrower is organized, the Lenders shall have consented to the jurisdiction of organization of such Person and (y) the Borrowers shall have provided (or caused to be provided) a customary joinder to this Agreement, pursuant to which such Person assumes all of the rights, duties and obligations of a “Borrower” hereunder, and other customary documentation reasonably requested by the Administrative Agent and consistent with the documentation delivered under Sections 4.01(a)(ii), (iii), (iv), (v), (vi), (viii) (including a Beneficial Ownership Certification and documentation and other information reasonably requested by the Lenders in writing required in order to comply with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, with respect to such Person) and (ix) with respect to such Person (and modified as appropriate for the jurisdiction of organization of the applicable Subsidiary); and
(vi) any Material Subsidiary (other than Athene Life Re) may liquidate or dissolve; provided that for the avoidance of doubt, nothing in this Section 7.03 shall be deemed to limit, prohibit or restrict any Borrower or such surviving person shall not be a regulated entityany Material Subsidiary from entering into, amending or modifying any Policy, any Reinsurance Agreement or any Retrocession Agreement or providing collateral security to the extent permitted by Section 7.02(xviii).
Appears in 2 contracts
Sources: Credit Agreement (Athene Holding LTD), 364 Day Credit Agreement (Athene Holding LTD)
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 Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge or consolidate with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party Guarantor shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(ib) any Subsidiary that is not a Loan Party the Borrower and Subsidiaries of Borrower may merge or consolidate with any Person as necessary to consummate Acquisitions permitted hereunder; provided that if Borrower is party to transaction, Borrower shall be the surviving Person;
(c) any Subsidiary may Dispose of all or into any other Subsidiary substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the transferor in such a transaction is not a Loan Party and Guarantor, then the transferee must either be the Borrower or a Guarantor;
(iid) Dispositions of all or substantially all of the assets of any Subsidiary (other than the Borrowera Guarantor) may liquidate or dissolve or change its legal form;
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment not otherwise permitted pursuant to under this Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary7.04 shall be permitted; provided that (i) at 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 6.12, (ii) to the extent the purpose time of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary Disposition, no Default shall exist or an Unrestricted Subsidiary as a Restricted Subsidiary would result from such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentDisposition, (ii) the Borrower or such surviving Person combined book value of all property and assets Disposed of in reliance of this clause (d) (combined with any Dispositions made pursuant to clause (j) of Section 7.05) while this Agreement is in effect shall be organized under not exceed $300,000,000 in the laws of the United States or any state thereof aggregate, and (iii) after giving effect to such Disposition, the Borrower or such surviving person shall not be is in compliance, on a regulated entity; and
(f) the Borrower may merge projected pro forma basis, with a Subsidiary of Holdings Section 7.11 for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.subsequent four fiscal quarters;
Appears in 2 contracts
Sources: Credit Agreement (Varian Medical Systems Inc), Credit Agreement (Varian Medical Systems Inc)
Fundamental Changes. Merge(a) Each of the Parent and the Borrower will not, dissolveand will not permit any Restricted Subsidiary to, liquidate, merge into or consolidate with any other Person, or permit any other Person to merge into another Personor consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of the Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), except as permitted pursuant to Section 6.13, or liquidate 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 Person may merge into the Parent or the Borrower in a transaction in which the Parent or the Borrower, respectively, is the surviving Person, (ii) any Person may merge into any Guarantor in a transaction in which the surviving entity is wholly-owned, directly or indirectly, by the Borrower and such surviving entity is such Guarantor or expressly assumes in writing (in form and substance satisfactory to the Administrative Agent) all obligations of such Guarantor under the Loan Documents, (iii) any Person may merge into any Restricted Subsidiary that is not a Guarantor in a transaction in which the surviving entity is wholly-owned, directly or indirectly, by the Borrower and, if such surviving entity constitutes a Material Domestic Subsidiary, the Parent, the Borrower and such surviving entity comply with the requirements of Section 5.13, (iv) any Restricted Subsidiary may merge with (i) sell, transfer, lease or otherwise dispose of its assets to the Parent, the Borrower or another Restricted Subsidiary and (including v) any Restricted Subsidiary may liquidate or dissolve if the Parent or the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Parent and the Borrower and is not materially disadvantageous to the Lenders; provided that any such merger involving a mergerPerson that is not a wholly-owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04.
(b) The Parent and 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 Parent, the purpose Borrower and the Restricted Subsidiaries on the date of which is to reorganize execution of this Agreement and businesses reasonably related thereto. From and after the date hereof, the Parent and the Borrower into a new jurisdiction so long as will not, and will not permit any Restricted Subsidiary to, acquire or make any other expenditures (whether such expenditure is capital, operating or otherwise) in or related to any Oil and Gas Properties not located within the Borrower remains organized under the laws geographical boundaries of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing form or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(i) acquire 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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws any jurisdiction outside of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityStates.
Appears in 2 contracts
Sources: Credit Agreement (Penn Virginia Corp), Credit Agreement (Penn Virginia Corp)
Fundamental Changes. Merge(a) Neither STX nor the Borrower will, and will not permit any of their respective Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with STX or the Borrower or any of their respective Subsidiaries, or liquidate or dissolve, liquidatenor will STX or the Borrower sell, consolidate with transfer, lease or into another Personotherwise dispose of (in one transaction or in a series of transactions) all or substantially all the assets of the Borrower and the Subsidiaries, taken as a whole (whether directly or through the sale, transfer, lease or other disposition of the assets of one or more Subsidiaries), 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 may merge with (i) STX or the Borrower (including in a merger, transaction in which the purpose of which surviving entity is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains Person organized or existing under the laws of the United States of America, any State thereof, the District of Columbia or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person Ireland or the Cayman Islands and, if such surviving entity is not STX or the Borrower, as the case may be, such Person shall expressly assume assumes, in writing, all the obligations of STX or the Borrower in Borrower, as the case may be, under the Loan Documents and provides the Lenders with requisite “know-your-customer” information as reasonably requested by a manner reasonably acceptable to the Administrative AgentLender, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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 Person may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary and (other than the Borrowerif any party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party and any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or change its legal form;dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, provided that any such merger involving a Person that is not a wholly-owned Subsidiary of the Borrower immediately prior to such merger shall not be permitted unless also permitted by Sections 6.04 and 6.
(cb) so long as no Event Each of Default exists or would result therefromSTX and the Borrower will not, and will not permit any Restricted Subsidiary may merge with of its subsidiaries to, engage to any material extent in any business other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that than (i) businesses of the continuing type conducted by STX, the Borrower and the Subsidiaries on the date of execution of this Agreement and businesses reasonably related, ancillary or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, complementary thereto and (ii) to in the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations case of the Borrower in a manner reasonably acceptable to the Administrative AgentSPE Subsidiaries, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityPermitted Receivables Financings.
Appears in 2 contracts
Sources: Second Amendment and Joinder Agreement (Seagate Technology PLC), Credit Agreement (Seagate Technology PLC)
Fundamental Changes. MergeNo Obligor will consolidate, dissolve, liquidate, consolidate amalgamate or merge with or into another any other Person or sell, lease or otherwise transfer all or substantially all of the Consolidated assets to any other Person, except that:unless
(a) any Restricted Subsidiary may merge with (i) such Obligor is the Borrower surviving corporation, or the Person (including a mergerif other than such Obligor) formed by such consolidation or amalgamation or into which such Obligor is merged or amalgamated, or the Person which acquires by sale or other transfer, or which leases, all or substantially all of the assets of such Obligor (any such Person, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains “Successor”), shall be organized and existing under the laws of any Permitted Jurisdiction, any state of the United States or any state thereof the District of Columbia and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume assume, in a writing executed and delivered to the obligations Administrative Agent for delivery to each of the Borrower Lenders, in a manner form reasonably acceptable satisfactory to the Administrative Agent, or (ii) any one or more the due and punctual payment of the principal of and interest on the Loans and the performance of the other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a obligations under this Agreement and the other Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be Documents on the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose part of such transaction is Obligor to designate a Restricted Subsidiary be performed or observed, as an Unrestricted Subsidiary or an Unrestricted Subsidiary fully as a Restricted Subsidiary if such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, Successor were originally named as such Investment must be a permitted Investment Obligor in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower this Agreement or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityother Loan Document; and
(fii) the Borrower may merge with a Subsidiary immediately after giving effect to such transaction, no Default or Event of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02Default shall have occurred and be continuing; provided that and
(iiii) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable such Obligor has delivered to the Administrative AgentAgent a certificate on behalf of such Obligor signed by a Responsible Officer and an opinion of counsel, each stating that all conditions provided in this Section 5.08 relating to such transaction have been satisfied. Upon the satisfaction (iior waiver) of the conditions set forth in this Section 5.08, a Successor to the Borrower or such surviving Person the Guarantor shall be organized under the laws of the United States or any state thereof succeed, and (iii) may exercise every right and power of, the Borrower or the Guarantor under this Agreement and the other Loan Documents with the same effect as if such surviving person Successor had been originally named as the Borrower or the Guarantor herein, and the Borrower or the Guarantor, as the case may be, shall not be a regulated entityrelieved of and released from its obligations under this Agreement and the other Loan Documents.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (TE Connectivity Ltd.), Five Year Senior Credit Agreement (TE Connectivity Ltd.)
Fundamental Changes. MergeNeither Holdings nor any of the 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 (other than as part of the Transaction), except that:
(a) any Restricted Subsidiary of the Borrower 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 the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted SubsidiariesSubsidiaries of the Borrower; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 the Borrower) may liquidate or dissolve or change its legal form if Holdings determines in good faith that such action is in the best interest of Holdings and its Subsidiaries and if not materially disadvantageous to the Lenders (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 be a Guarantor or the 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 (other than Section 7.02(e)) and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefromtherefrom (in the case of a merger or amalgamation involving a Loan Party), any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.126.11 to the extent required pursuant to the Collateral and Guarantee Requirement;
(e) 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 Company”), (A) the Successor 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 extent Administrative Agent, (B) each Guarantor, unless it is the purpose of other party to such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary merger or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16consolidation, or (iii) shall have confirmed that its Guarantee shall apply to the extent constituting 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 each applicable Collateral Document confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (D) 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 Investmentamendment 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 Company’s obligations under the Loan Documents, (E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such Investment must merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement and an opinion of counsel in form and substance reasonably satisfactory to the Administrative Agent and (F) the Administrative Agent shall have determined that such merger is not adverse to the interests of the Lenders in any respect; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be a permitted Investment in accordance with Section 7.02substituted for, the Borrower under this Agreement;
(df) so long as no Default exists or would result therefrom, Holdings may merge with any Person that is a holding company; provided that (i) Holdings shall be the continuing or surviving company or (ii) if the Person formed by or surviving such merger or consolidation is not Holdings, (A) such Person shall expressly assume all obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto reasonably satisfactory to the Administrative Agent, (B) Holdings shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to this Agreement or any such Collateral Document comply with this Agreement and an opinion of counsel in form and substance reasonably satisfactory to the Administrative Agent and (C) the Borrower Administrative Agent shall have determined that such merger is not adverse to the interests of the Lenders in any respect; provided, further, that if the foregoing are satisfied, the successor of such merger, will succeed to, and its be substituted for, Holdings under this Agreement;
(g) Holdings and the Restricted Subsidiaries may consummate the Acquisition;, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(eh) the Borrower and its Restricted Subsidiaries may consummate so long as no Event of Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 2 contracts
Sources: Credit Agreement (Styron Canada ULC), Credit Agreement (Trinseo S.A.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a) The Loan Parties will not, and will not permit any Restricted Significant Subsidiary may to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, consummate a Division as the Dividing Person or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Significant Subsidiaries(in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided, that if at the time thereof and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing (i) the Borrower (including or any Significant Subsidiary may merge with a merger, the purpose of which is to reorganize Person if the Borrower into a new jurisdiction so long as (or such Subsidiary if the Borrower remains organized under is not a party to such merger) is the laws of the United States or surviving Person, (ii) any state thereof and does not become Significant Subsidiary may merge into another Subsidiary; provided, that if any party to such merger is a regulated entity); provided that the Borrower shall be the continuing or surviving Person or Loan Party, the surviving Person shall expressly assume the obligations be a Loan Party, (iii) any Significant Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower in or to a manner reasonably acceptable to the Administrative AgentSubsidiary; provided, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted if such Significant Subsidiary that is a Loan Party is merging with Party, it may only sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to another Restricted SubsidiaryLoan Party, (Aiv) a Loan Party shall be the continuing or surviving Person or [Reserved], (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(iv) 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 Significant Subsidiary (other than the Borrowera Loan Party) may liquidate or dissolve if the Borrower determines in good faith that such liquidation or change its legal form;
dissolution is in the best interests and with the consent of the Required Lenders; and (cvi) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant subject to Section 7.022.8, sales and other dispositions of property that the designation Borrower or its Subsidiaries reasonably determine is obsolete and no longer used or useful in the ordinary course of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiaryits business; provided provided, that with respect to clauses (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 6.12, and (ii) of this Section 7.3(a), any such merger involving a Person that is not a Wholly Owned Subsidiary immediately prior to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must merger shall not be permitted unless also permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;7.4.
(db) the Borrower The Loan Parties will not, and its Restricted will not permit any of their Subsidiaries may consummate the Acquisition;
to, engage in any type of business other than helicopter services and such other businesses or services (eincluding other aircraft services) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party are reasonably related thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 2 contracts
Sources: Credit Agreement (Bristow Group Inc), Term Loan Credit Agreement (Bristow Group Inc)
Fundamental Changes. Merge, dissolve, liquidate, The Borrower may not (1) consolidate or merge with or into another Person (whether or not the Borrower is the surviving Person); or (2) sell, except thatassign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets 1003651351v23 of the Borrower and its Subsidiaries taken as a whole, in one or more related transactions to another Person; unless:
(a) any Restricted Subsidiary may merge with either: (i) the Borrower is the surviving Person; or (including ii) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains Person organized or existing under the laws of the United States States, any state of the United States, the District of Columbia or any state territory thereof and does not become a regulated entity); provided that (the Borrower shall be or such Person, as the continuing or surviving Person or case may be, being herein called, the surviving Person shall expressly assume “Successor Borrower”);
(b) the Successor Borrower (if other than the Borrower) assumes all the obligations of the Borrower under this Agreement and the other Loan Documents to which it is a party by executing a joinder or one or more other documents or instruments in a manner form reasonably acceptable satisfactory to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as immediately after such transaction no Default or Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02exists;
(d) immediately after giving pro forma effect to such transaction and any related financing transactions, as if the same had occurred at the beginning of the applicable four-quarter period, either:
(i) the Successor Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 7.01(a); or
(ii) the Fixed Charge Coverage Ratio for the Successor Borrower and its Restricted Subsidiaries would be equal to or greater than such ratio for the Borrower and its Restricted Subsidiaries may consummate the Acquisitionimmediately prior to such transaction;
(e) each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to any such consolidation or merger that does not survive or become the Successor Borrower) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guarantee; and
(f) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Security Agreement in connection with such transaction and (y) any party to any such consolidation or merger that does not survive or become the Successor Borrower) shall have by a supplement to the Security Agreement or another document or instrument in form reasonably satisfactory to the Administrative Agent affirmed that its obligations thereunder shall apply to its Guaranty as confirmed pursuant to clause (e) above; provided that, for the purposes of this Section 7.06 only, neither a Music Publishing Sale nor a Recorded Music Sale will be deemed to be a sale, assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole. For the avoidance of doubt, (1) the Borrower may therefore consummate a Music Publishing Sale in accordance with Section 7.03 without complying with this Section 7.06 notwithstanding anything to the contrary in this Section 7.06, (2) the Borrower may therefore consummate a Recorded Music Sale in 1003651351v23 accordance with Section 7.03 without complying with this Section 7.06 notwithstanding anything to the contrary in this Section 7.06 and (3) the determination in the preceding proviso shall not affect the determination of what constitutes all or substantially all the assets of the Borrower under any other contract to which the Borrower is a party. For the purpose of this Section 7.06, with respect to any sale, lease, transfer, conveyance or other disposition of properties or assets in connection with any acquisition (including any acquisition by means of a merger or consolidation with or into the Borrower or any Restricted Subsidiary), the determination of whether such sale, lease, transfer, conveyance or disposition constitutes a sale of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole shall be made on a pro forma basis giving effect to such acquisition. This Section 7.06 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Borrower and its Restricted Subsidiaries. Notwithstanding the foregoing clauses (c) and (d), (x) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Borrower or to another Restricted Subsidiary and (y) the Borrower may merge with an Affiliate incorporated solely for the purpose of reincorporating the Borrower in another state of the United States so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityincreased thereby.
Appears in 2 contracts
Sources: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the surviving Person shall expressly assume District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the obligations perfection or priority of the Borrower in a manner reasonably acceptable to Liens granted under the Administrative Agent, Collateral Documents or (ii) any one or more other Restricted Subsidiaries; provided provided, in the case of this clause (ii), that when any Restricted Subsidiary that is such transaction involves a Loan Party is merging with another Restricted SubsidiaryParty, (A) a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may 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 interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders 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 be a Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment must be an a permitted Investment in or Indebtedness permitted by of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02(c) 7.02 and 7.03(b)(iv)7.03, respectively;
(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;
(cd) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary 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 or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority 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 Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the 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 the 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 the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (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 the Administrative Agent, the Collateral Agent or 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) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) 6.11 to the extent required pursuant to the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, Collateral and Guarantee Requirement or (iiiy) to the extent constituting an Investment, such Investment must be transaction shall otherwise constitute a permitted Investment in accordance with Section 7.02Investment;
(df) the Borrower and its any Restricted Subsidiaries Subsidiary may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(fg) the Borrower any Restricted Subsidiary may merge with a Subsidiary Dispose of Holdings for the purpose all or substantially all of effecting an Investment permitted pursuant to Section 7.02; provided that its assets (iupon voluntary liquidation or otherwise) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, extent that such Disposition (iior series of related Dispositions) the Borrower or such surviving Person shall be organized is not prohibited under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitySection 7.05.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (YRC Worldwide Inc.), Term Loan Credit Agreement (YRC Worldwide Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a) Merge into or consolidate into any Restricted Subsidiary may other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) 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; provided, that if at the time thereof and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing (i) the Borrower (including or any Subsidiary may merge with a merger, the purpose of which is to reorganize Person if the Borrower into a new jurisdiction so long as (or such Subsidiary if the Borrower remains organized under the laws of the United States or any state thereof and does is not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or party to such merger) is the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted SubsidiariesSubsidiary may merge into another Subsidiary; provided provided, that when if any Restricted Subsidiary that party to such merger is a Loan Party is merging with another Restricted SubsidiaryGuarantor, (A) a Loan Party the Guarantor shall be the continuing or surviving Person or Person, (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(iiii) any Subsidiary that is not a Loan Party may merge sell, transfer, lease or consolidate with otherwise dispose of all or into substantially all of its assets to any other Subsidiary that is not a Loan Party and (iiiv) any Subsidiary (other than the Borrowera Guarantor) may liquidate or dissolve if the Borrower determines in good faith that such liquidation or change its legal form;
(c) so long as no Event dissolution is in the best interests of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) Borrower and is not materially disadvantageous to the extent the purpose of Lenders; provided, that any such transaction merger involving a Person that is not a wholly-owned Subsidiary immediately prior to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must merger shall not be permitted unless also permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;7.4.
(db) Engage in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries may consummate on the Acquisition;
(e) the Borrower date hereof and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party businesses reasonably related thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 2 contracts
Sources: Credit Agreement (Health Management Associates Inc), Credit Agreement (Health Management Associates Inc)
Fundamental Changes. MergeExcept in connection with an Excluded Disposition, merge, dissolve, liquidate, consolidate with or into another Person, except 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, notwithstanding the foregoing provisions of this Section 8.04 but subject to the terms of Sections 7.12:
(a) the Borrower or any Restricted Subsidiary of the Borrower may merge with another Person that is not the Borrower or a Subsidiary of the Borrower, provided that (i) the Borrower (including a merger, the purpose of which such other Person is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws law of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations one of the Borrower in a manner reasonably acceptable to the Administrative Agentits states, or (ii) in the case of any one merger involving the Borrower or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that the Guarantor, the Borrower or the Guarantor, as applicable is a Loan Party is merging with another Restricted Subsidiarythe corporation surviving such merger, (Aiii) in the case of any merger involving a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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 of the Borrower, the survivor is or will become a Subsidiary of the Borrower, (iv) may liquidate immediately prior to and after giving effect to such merger, no Default or dissolve or change its legal form;
(c) so long as no Event of Default exists or would result therefromexist, any Restricted (iv) the Board of Directors of such Person has approved such merger, and (v) such transaction is permitted under Section 8.02;
(b) Any Subsidiary of the Borrower (other than the Guarantor) may merge with or into the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(c) Any Subsidiary of the Borrower (other Person in order to effect an Investment permitted pursuant to Section 7.02than the Guarantor) may liquidate, wind-up or dissolve itself into the designation Borrower or any Wholly-Owned Subsidiary of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02Borrower;
(d) The Guarantor may liquidate, wind-up or dissolve itself into the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityBorrower; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 1 contract
Sources: Credit Agreement (DST Systems Inc)
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:, so long as (other than in the case of clause (e)) no Event of Default would result therefrom (or, in the case of any such transaction in connection with a Limited Condition Acquisition, no Event of Default exists as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into):
(a) any Restricted Subsidiary (or any other Person (other than, except as set forth below, any Single Purpose License 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 the Borrower remains organized under the laws in any State of the United States or any state thereof and does not become a regulated entityof America); provided that the Borrower shall be the continuing or surviving Person or the surviving Person (which shall be a Person incorporated or organized in any State of the United States of America or the District of Columbia) shall expressly assume the obligations of the Borrower in a manner pursuant to documents reasonably acceptable to the Administrative Agent, Agent or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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 (iiA) any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) Guarantor shall 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 6.12Person, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iiiB) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02, respectively and (C) to the extent constituting a Disposition, such Disposition must be permitted hereunder; provided that (i) a Single Purpose License Subsidiary and any Restricted Subsidiary holding the assets and liabilities of any Station may take any actions otherwise prohibited by this clause (a) to the extent such merger or consolidation occurs in contemplation of, and immediately preceding, a sale, transfer or other disposition (including an Asset Swap Transaction) of such Single Purpose License Subsidiary or other Restricted Subsidiary and (ii) any Restricted Subsidiary may take any actions otherwise prohibited by this clause (a) to the extent necessary to comply with the requirements of Section 6.12, Section 6.14 or Section 6.19;
(db) (i) any Restricted Subsidiary that is not a Loan Party (other than, except as set forth below, any Single Purpose License Subsidiary) may 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 the Borrower or any Restricted 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 Borrower determines in good faith that such action is in the best interest of the Borrower and its Restricted Subsidiaries may consummate taken as a whole and is not disadvantageous to the Acquisition;
Lenders in any material respect (e) it being understood that in the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, case of any liquidation or consolidationdissolution of a Restricted Subsidiary that is a Guarantor, such Subsidiary shall at or before the purpose time of which such dissolution transfer its assets to another Restricted Subsidiary that is a Guarantor unless such Disposition of assets is permitted hereunder; and 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 effect cease being a Disposition permitted pursuant to Section 7.05Guarantor hereunder); provided that (i) if a Single Purpose License Subsidiary and any Restricted Subsidiary holding the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations assets and liabilities of the Borrower in a manner reasonably acceptable any Station may take any actions otherwise prohibited by this clause (b) to the Administrative Agentextent such merger or consolidation occurs in contemplation of, and immediately preceding, a sale, transfer or other disposition (including an Asset Swap Transaction) of such Single Purpose License Subsidiary or other Restricted Subsidiary and (ii) any Restricted Subsidiary may take any actions otherwise prohibited by this clause (b) to the extent necessary to comply with the requirements of Section 6.12, Section 6.14 or Section 6.19;
(c) any Restricted Subsidiary (other than, except as set forth below, any Single Purpose License Subsidiary) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to any Restricted Subsidiary; provided that if the transferor in such surviving Person shall a transaction is a Guarantor, then (i) the transferee must either be organized under the laws of the United States or any state thereof and (iii) the Borrower or a Guarantor or (ii) to the extent constituting an Investment, such surviving person shall not Investment must be permitted by Section 7.02; provided that (i) a regulated entity; andSingle Purpose License Subsidiary and any Restricted Subsidiary holding the assets and liabilities of any Station may take any actions otherwise prohibited by this clause (c) to the extent such merger or consolidation occurs in contemplation of, and immediately preceding, a sale, transfer or other disposition (including an Asset Swap Transaction) of such Single Purpose License Subsidiary or other Restricted Subsidiary and (ii) any Restricted Subsidiary may take any actions otherwise prohibited by this clause (c) to the extent necessary to comply with the requirements of Section 6.12, Section 6.14 or Section 6.19;
(fd) the Borrower any Restricted Subsidiary (other than, except as set forth below, any Single Purpose License Subsidiary) may merge with a Subsidiary of Holdings for the purpose of effecting merge, amalgamate or consolidate with, or dissolve into, any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable shall, to the Administrative Agentextent subject to the terms hereof, have complied with the requirements of Section 6.12 and (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02; provided that (i) a Single Purpose License Subsidiary and any Restricted Subsidiary holding the assets and liabilities of any Station may take any actions otherwise prohibited by this clause (d) to the extent such merger or consolidation occurs in contemplation of, and immediately preceding, a sale, transfer or other disposition (including an Asset Swap Transaction) of such Single Purpose License Subsidiary or other Restricted Subsidiary and (ii) any Restricted Subsidiary may take any actions otherwise prohibited by this clause (d) to the extent necessary to comply with the requirements of Section 6.12, Section 6.14 or Section 6.19;
(e) the Borrower and the other Restricted Subsidiaries may consummate the Transactions;
(f) subject to Section 7.04(a)(i), the Borrower or such surviving Person shall any Restricted Subsidiary may merge, amalgamate, consolidate (and in the case of any Restricted Subsidiary, dissolve or liquidate) with or into another Person, engage in an Asset Swap Transaction or Dispose of all or substantially all of its assets order to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(d)(A));
(g) any Investment permitted by Section 7.02 may be organized under the laws structured as a merger, consolidation or amalgamation; and
(h) any Single Purpose License Subsidiary may merge, amalgamate, consolidate with, Dispose all or substantially all of the United States its assets to, or enter into any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityother transaction described in this Section 7.04 with another Single Purpose License Subsidiary.
Appears in 1 contract
Sources: Credit Agreement (Tribune Media Co)
Fundamental Changes. Merge(a) No Loan Party will, dissolvenor will it permit any Subsidiary to, liquidate, merge into or consolidate with any other Person, or permit any other Person to merge into another or consolidate with it, consummate a Division as the Dividing Person, otherwise Dispose of all or substantially all of its assets, or liquidate 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 merger, the purpose of which is to reorganize the Borrower may merge into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to transaction in which the Administrative AgentBorrower is the surviving entity, or (ii) any one or more Loan Party (other Restricted Subsidiaries; provided that when than the Borrower) may merge into any Restricted Subsidiary that other Loan Party in a transaction in which the surviving entity is a Loan Party is merging with another Restricted SubsidiaryParty, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(iiii) any Subsidiary that is not a Loan Party may merge liquidate or consolidate with dissolve if the Borrower which owns such Subsidiary determines in good faith that such liquidation or into dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that any other Subsidiary such merger involving a Person that is not a Loan Party and wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04, (iiiv) the Borrower or any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form;
form following 30 days’ prior written notice to the Administrative Agent and the Administrative Agent shall have acknowledged in writing that either (c1) so long as no Event such change will not adversely affect the validity, perfection or priority of Default exists the Administrative Agent’s security interest in the Collateral, or would result therefrom(2) any reasonable action requested by the Administrative Agent in connection therewith has been completed or taken (including any action to continue the perfection of any Liens in favor of the Administrative Agent, on behalf of the Secured Parties, in any Restricted Collateral) or will be taken within any time period reasonably specified by the Administrative Agent or (v) the Borrower or any Subsidiary may merge with any other Person in order consummate a merger, consolidation or liquidation if the purpose thereof is to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary 6.04 or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.056.05; provided that (ix) if any such transaction to which the Borrower is a party thereto, shall result in the Borrower shall be the continuing or surviving Person or as the surviving Person entity and (y) any such transaction to which any Loan Party (other than the Borrower) is a party shall expressly assume result in a Loan Party as the obligations surviving entity.
(c) No Loan Party will, nor will it permit any Subsidiary to, change its fiscal year from the basis in effect on the Effective Date unless it has given the Administrative Agent not less than thirty (30) days’ prior written notice thereof; provided, that any Subsidiary acquired in an Acquisition may change its fiscal year so it corresponds to that of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityBorrower.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, (a) The Borrower will not merge into or consolidate with any other Person, or permit any other Person to merge into another Personor consolidate with it, consummate a Division as the Dividing Person or sell, transfer, lease or otherwise dispose of (directly or indirectly through a Subsidiary) (in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its Subsidiaries on a consolidated basis to any Person other than the Borrower or a Subsidiary, or liquidate 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 Person may merge into the Borrower in a transaction in which (including a merger, the purpose of which is to reorganize x) the Borrower into is the surviving corporation or (y) the surviving Person (1) is a new jurisdiction so long as the Borrower remains corporation organized and validly existing under the laws of the United States of America or any state State thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall District of Columbia, (2) has long-term senior unsecured, unguaranteed debt securities rated no lower than Baa2 by ▇▇▇▇▇’▇ and BBB by Standard & Poor’s, (3) expressly assume the obligations assumes all of the Borrower Borrower’s obligations under this Agreement and (4) provides such information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in a manner reasonably acceptable to writing by the Administrative AgentAgent and such other approvals, opinions or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied documents consistent with the requirements of Section 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary in Article IV as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, Agent (in consultation with the Lenders) may reasonably request and (ii) the Borrower or such surviving Person shall be may consummate a Division if (v) the Division Successor which holds the rights and liabilities under this Agreement (“Division Successor Borrower”) is a corporation organized and validly existing under the laws of the United States of America or any state State thereof or the District of Columbia, (w) the Division Successor Borrower has long-term senior unsecured, unguaranteed debt securities rated no lower than Baa2 by ▇▇▇▇▇’▇ and BBB by Standard & Poor’s, (x) the Division will not result in a sale, transfer, lease or other disposition of all or substantially all of the assets held the Borrower and its Subsidiaries on a consolidated basis immediately prior to giving effect to such Division, (y) the Division Successor Borrower expressly assumes all of the Borrower’s obligations under this Agreement and (iiiz) the Division Successor Borrower provides such information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, as is reasonably requested in writing by the Administrative Agent and such other approvals, opinions or such surviving person shall not be a regulated entity; anddocuments consistent with the requirements in Article IV as the Administrative Agent (in consultation with the Lenders) may reasonably request.
(fb) 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 and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related, incidental or ancillary thereto or that is a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityreasonable extension thereof.
Appears in 1 contract
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 liquidate or dissolve (including, in each case, pursuant to a Delaware LLC Division) 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 (other than as part of the Transactions), except that:
(a1) 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that that
(a) the Borrower shall be the continuing or surviving Person Person,
(b) such merger or consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States, any state thereof or the surviving Person shall expressly assume the obligations District of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;Columbia and
(ia) 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,
(iib) any Subsidiary may 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;
(other than c) any merger the Borrowersole purpose of which is to reincorporate or reorganize a Loan Party or Subsidiary in another jurisdiction in the United States will be permitted; provided that if such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person; and
(d) any Subsidiary may liquidate or dissolve or change its legal form;
(c) so long as no Event form if the Borrower determines in good faith that such action is in the best interests of Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order the Borrower and the Subsidiaries and is not materially disadvantageous to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted SubsidiaryLenders; provided that in the case of clause (i) d), the continuing Person who receives the assets of such dissolving or surviving Person liquidated Subsidiary that is a Guarantor shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, Loan Party or such disposition shall have complied with the requirements of Section 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must otherwise be permitted by under Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.027.13;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 1 contract
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, so long as (other than in the case of clause (e)) no Event of Default would result therefrom:
(a) any Restricted Subsidiary (or any other Person) 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 the Borrower remains organized under the laws in any State of the United States or any state thereof and does not become a regulated entityof America); provided that the Borrower shall be the continuing or surviving Person or the surviving Person (which shall be a Person incorporated or organized in any State of the United States of America or the District of Columbia) shall expressly assume the obligations of the Borrower in a manner pursuant to documents reasonably acceptable to the Administrative Agent, Agent or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, Subsidiary that is not a Loan Party (A) a Loan Party the Guarantor shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall be become a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12Guarantor, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iiiB) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.027.02 or (C) to the extent constituting a Disposition, such Disposition must be permitted in accordance with Section 7.05; provided that any Restricted Subsidiary may take any actions otherwise prohibited by this clause (a) to the extent necessary to comply with the requirements of Section 6.12 or Section 6.14;
(db) (i) any Restricted Subsidiary that is not a Loan Party may 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 the Borrower or any Restricted 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 Borrower determines in good faith that such action is in the best interest of the Borrower and its Restricted Subsidiaries taken as a whole and is not disadvantageous to the Lenders in any material respect (it being understood that in the case of any liquidation or dissolution of a Restricted Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Guarantor unless such Disposition of assets is permitted hereunder; and 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); provided that any Restricted Subsidiary may consummate take any actions otherwise prohibited by this clause (b) to the Acquisitionextent necessary to comply with the requirements of Section 6.12 or Section 6.14;
(ec) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower and its or to any Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) if the transferee must either be the Borrower is or a party thereto, the Borrower shall be the continuing Guarantor or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) to the Borrower extent constituting an Investment, such Investment must be permitted by Section 7.02; provided that any Restricted Subsidiary may take any actions otherwise prohibited by this clause (c) to the extent necessary to comply with the requirements of Section 6.12 or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; andSection 6.14;
(fd) the Borrower any Restricted Subsidiary may merge with a Subsidiary of Holdings for the purpose of effecting merge, amalgamate or consolidate with, or dissolve into, any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable shall, to the Administrative Agentextent subject to the terms hereof, have complied with the requirements of Section 6.12; provided, further, that any Restricted Subsidiary may take any actions otherwise prohibited by this clause (iid) to the extent necessary to comply with the requirements of Section 6.12 or Section 6.14;
(e) the Borrower or such surviving Person shall be organized under and the laws of other Restricted Subsidiaries may consummate the United States or any state thereof and Transactions;
(iiif) subject to Section 7.04(a)(i), the Borrower or such surviving person shall not any Restricted Subsidiary may merge, amalgamate, consolidate (and in the case of any Restricted Subsidiary, dissolve or liquidate) with or into another Person, engage in an Asset Swap Transaction or Dispose of all or substantially all of its assets order to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(d)(A)); and
(g) any Investment permitted by Section 7.02 may be structured as a regulated entitymerger, consolidation or amalgamation.
Appears in 1 contract
Fundamental Changes. MergeExcept as expressly permitted by Section 7.2 (other than clause (xvii) thereof) or Section 7.5B, dissolveHoldings, U.S. Holdings, U.S. ▇▇▇▇▇ and the Borrower will not, nor will they permit any Subsidiary Guarantors to, enter into any merger, consolidation or amalgamation, or liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of all or substantially all its business units, assets or other properties, except that:
(ai) (x) 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agentor any other Person may be merged, amalgamated or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(i) any Subsidiary that is not a Loan Party may merge or consolidate consolidated 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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (ia) the Borrower shall be the continuing or surviving Person Person, or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than the 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 (such Person being herein referred to as the “Successor Borrower”) and, at least five Business Days prior to such merger, amalgamation or consolidation, the Administrative Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, (b) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a supplement hereto or thereto in a manner form reasonably acceptable satisfactory to the Administrative Agent, (iic) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of such merger, amalgamation or consolidation, (d) if such merger, amalgamation or consolidation involves the Borrower, Holdings shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Fiscal Quarter for which Section 6.1 Financials have been delivered as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period (if, on a Pro Forma Basis, such Fiscal Quarter would have been a Measurement Quarter), (e) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guaranty confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under this Agreement, (f) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to this Agreement preserve the enforceability of the Guaranty and (g) if reasonably requested by the Administrative Agent, an opinion of counsel to the effect that such surviving merger, amalgamation or consolidation does not violate this Agreement or any other Loan Document; provided further, that if the foregoing are satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement and (y) U.S. ▇▇▇▇▇ may merge with and into any Subsidiary Guarantor;
(ii) any Subsidiary of U.S. ▇▇▇▇▇ or the Borrower or any other Person (other than Holdings, U.S. Holdings, U.S. ▇▇▇▇▇ or the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of U.S. ▇▇▇▇▇ or the Borrower; provided that (a) in the case of any merger, amalgamation or consolidation involving one or more Subsidiary Guarantors, (1) a Subsidiary Guarantor shall be organized under the laws continuing or surviving corporation or (2) U.S. ▇▇▇▇▇ or the Borrower shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Subsidiary Guarantor) to become a Subsidiary Guarantor, and (b) Holdings shall have delivered to the Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to this Agreement preserve the enforceability of the United States or any state thereof and Guaranty;
(iii) any Subsidiary Guarantor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to U.S. ▇▇▇▇▇, the Borrower or any other Subsidiary Guarantor;
(iv) any Subsidiary Guarantor may liquidate or dissolve if (A) U.S. ▇▇▇▇▇ or the Borrower determines in good faith that such surviving person liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (B) any assets or business not otherwise disposed of or transferred in accordance with Section 7.2 or 7.5A, or, in the case of any such business, discontinued, shall not be a regulated entitytransferred to, or otherwise owned or conducted by, another Guarantor after giving effect to such liquidation or dissolution; and
(v) Holdings and the Restricted Subsidiaries may consummate the Acquisition and the Internal Reorganization.
Appears in 1 contract
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 jurisdiction so long as the Borrower remains organized under the laws of in the United States or any state thereof and does not become a regulated entityStates); provided that the such Borrower (as a newly recognized entity) shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or and (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries); provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 the Borrower) may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form if the Lead Borrower determines in good faith that such action is in the best interest of Albertson’s Group and if not materially disadvantageous to the Lenders (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) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to effect an Investment permitted pursuant Holdco or to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (i) the continuing or surviving Person shall transferee must be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, Loan Party or (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) 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 Section 7.027.02 (other than clause (e) of the definition of Permitted Investments) and Section 7.03, respectively;
(d) the so long as no Default exists or would result therefrom, a Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05merge with any other Person; provided that (i) if the Borrower is a party thereto, 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 a Borrower (any such Person, the surviving Person “Successor Company”), (A) the Successor 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 Company shall expressly assume all the obligations of such Borrower under this Agreement and the other Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Agent, (C) each Loan Party, unless it is the other party to such merger or consolidation, shall have confirmed that its obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor Company’s obligations under the Loan Agreements, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a manner reasonably acceptable supplement to the Security Agreement and other applicable Security Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, and (E) such Borrower shall have delivered to the Administrative AgentAgent an officer’s certificate and an opinion of counsel, (ii) the Borrower each stating that such merger or consolidation and such surviving Person shall be organized under the laws of the United States supplement to this Agreement or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge Security Document comply with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02this Agreement; provided further that (i) if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.this Agreement;
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Fundamental Changes. MergeNeither Parent nor any Loan Party 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, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary Loan Party may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity)other Loan Party; provided that the if Borrower is merging with another Loan Party, then Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or Person;
(iib) any Loan Party may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Borrower or to another Loan Party; provided that, if one or more Borrowing Base Properties constitutes all or substantially all of the assets of a Loan Party, then nothing contained in this Section 8.04 shall prohibit such Loan Party from making a Disposition permitted by Section 8.05(c) to a Person other Restricted Subsidiariesthan a Loan Party;
(c) any Loan Party may merge with any other Person (other than a Loan Party); provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a such Loan Party shall be the continuing or surviving Person, or that such Person or (B) is a wholly-owned Subsidiary of Parent and assumes all liabilities of such Loan Party under the Loan Documents pursuant to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelydocumentation acceptable to Administrative Agent;
(id) any Subsidiary that is not a Loan Party with the approval of the Required Lenders, Parent or substantially all of the Subsidiaries of Parent may merge or consolidate otherwise combine with or into any other Subsidiary that is not a Loan Party and another Person (ii) any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form;
(c“Permitted Combination”) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that as: (i) the continuing or and surviving Person shall be in such transaction (the “Survivor”) assumes and accedes to all obligations and liabilities of Parent under the Loan Documents, or to those of all of the other affected Loan Parties pursuant to documentation acceptable to Administrative Agent and enters into a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, new Parent Guaranty as required by Administrative Agent; (ii) no Default or Event of Default exists before or after giving effect to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary merger or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or other combination; (iii) a majority of the ownership interests in the Survivor continue to be owned by persons who owned, directly or indirectly, a majority of the extent constituting an Investment, ownership interests of Parent immediately prior to such Investment must be a permitted Investment in accordance with Section 7.02;
Permitted Combination; and (div) the Borrower Survivor is, or is a wholly-owned Subsidiary of, a public company the common equity of which is listed and its Restricted Subsidiaries may consummate the Acquisition;traded on a nationally-recognized stock exchange; and
(e) the Borrower Parent or any Subsidiary of Parent and its Restricted Subsidiaries CNL Hospitality Corp. may consummate a mergermerge or otherwise combine so long as Parent or such Subsidiary, dissolutionas applicable, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or and surviving Person and no Default or the surviving Person shall expressly assume the obligations Event of the Borrower in a manner reasonably acceptable Default exists before or after giving effect to the Administrative Agent, (ii) the Borrower such merger or such surviving Person shall be organized under other combination (the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity“Advisor Merger”).
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a) Neither the Company nor any Restricted Subsidiary may Borrower shall merge or consolidate with any other Person or Dispose of all or substantially all of its assets to any Person unless (iA) no Event of Default shall be continuing after giving effect to such transaction and (B)(x) such Borrower shall be the continuing entity or (y)
(1) the Borrower (including a mergerPerson formed by or surviving such merger or consolidation, or the purpose transferee of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains such assets, shall be an entity organized or existing under the laws of the United States States, any state thereof, or the District of Columbia (or, in the case of any Subsidiary Borrower organized outside of the United States, the jurisdiction of incorporation of such Subsidiary Borrower or any state thereof and does not become a regulated entity); provided other Foreign Subsidiary Borrower) that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume assumes all the obligations of such Borrower under the Borrower in Loan Documents pursuant to a manner reasonably acceptable supplement or amendment to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner Documents reasonably acceptable satisfactory to the Administrative Agent, (ii2) the Borrower Company and, during any Reinstated Guarantee Period, each Subsidiary Guarantor shall have reaffirmed its obligations under the Loan Documents and (3) the Administrative Agent shall have received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the Administrative Agent and consistent with the opinions delivered on the Closing Date with respect to such Borrower; provided, that, so long as no Obligations are owed (or in the case of Letters of Credit, as long as such surviving Obligations are Collateralized) by the applicable Subsidiary Borrower, the Company may elect for such Subsidiary to cease to be a “Borrower” hereunder pursuant to Section 10.1(d) hereof and, thereafter, such Subsidiary shall not be subject to the restrictions contained in this paragraph.
(b) During any Reinstated Guarantee Requirement Period, no Subsidiary that is a Subsidiary Guarantor shall merge or consolidate with any other Person or dispose of all or substantially all of its assets to any Person unless (i) the Company or a Subsidiary Guarantor shall be the continuing entity or shall be the transferee of such assets, (ii)(A) the Person formed by or surviving such merger or consolidation, or the transferee of such assets, shall be an entity organized or existing under the laws of the United States or States, any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person thereof, or the surviving Person shall District of Columbia that expressly assume assumes all the obligations of such other Subsidiary Guarantor under the Borrower in Loan Documents pursuant to a manner supplement or amendment to each applicable Loan Document reasonably acceptable satisfactory to the Administrative Agent, (iiB) the Borrower or such surviving Person Company and each then-remaining Loan Party shall be organized have reaffirmed its obligations under the laws Loan Documents and (C) the Administrative Agent shall have received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the United States Administrative Agent and, if applicable, consistent with the opinions delivered on the Closing Date with respect to such Loan Party, or any state thereof and (iii) the Borrower or such surviving person shall in connection with an asset sale not be a regulated entityprohibited by Section 7.5.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (General Motors Financial Company, Inc.)
Fundamental Changes. MergeNeither Holdings nor the Borrower will (nor will they permit any of the Restricted Subsidiaries to) 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:
(a) any Restricted Subsidiary (other than the Borrower) 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 the Borrower remains organized under the laws in any State of the United States or any state thereof and does not become a regulated entityof America); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall be a Domestic Restricted Subsidiary and shall expressly assume the obligations all Obligations of the Borrower in a manner pursuant to documents reasonably acceptable to the Administrative Agent, Agent or (ii) any one or more other Restricted SubsidiariesSubsidiary; provided that when any Restricted Subsidiary that Guarantor is a Loan Party is merging merging, [[3666665]] amalgamating or consolidating with another Restricted Subsidiary, Subsidiary (A) a Loan Party the Subsidiary Guarantor shall be the continuing continuing, resulting or surviving Person or Person, (B) to the extent constituting an InvestmentInvestment (including in each case where a non-Loan Party is the continuing, resulting or surviving Person), such Investment must be an a permitted Investment in or Indebtedness accordance with Section 6.08 and (C) to the extent constituting a Disposition, such Disposition must be permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyhereunder;
(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 (other than the Borrower or Spinco) may liquidate or dissolve if Holdings determines in good faith that such action is in the best interest of Holdings and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood and agreed that, in the case of any dissolution of any Subsidiary that is a Subsidiary Guarantor, such Subsidiary Guarantor shall at or before the time of such dissolution transfer its assets to another Subsidiary Guarantor unless such Disposition of assets is otherwise permitted hereunder);
(c) any Restricted Subsidiary (other than the Borrower) may liquidate Dispose of all or dissolve substantially all of its assets (upon voluntary liquidation or change its legal form;
otherwise) to (cx) so long as no Event of Default exists or would result therefrom, any if such Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02is a Loan Party, the designation of a Loan Party and (y) if such Restricted Subsidiary as an Unrestricted Subsidiary is not a Loan Party, Holdings or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall be a any Restricted Subsidiary, which together with in each case, if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) Borrower and is not materially disadvantageous to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02Lenders;
(d) Holdings and the Borrower and its Restricted Subsidiaries may consummate the AcquisitionAcquisition Transactions;
(e) any Restricted Subsidiary (other than the Borrower and its Restricted Subsidiaries or Spinco) may consummate a mergermerge, dissolutiondissolve, liquidation liquidate, amalgamate or consolidation, the purpose of which is consolidate with or into another Person in order to effect a Disposition permitted pursuant to Section 7.05; provided that 6.12 (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityother than Section 6.12(b)(i)); and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an any Investment permitted pursuant to by Section 7.02; provided that (i) the Borrower shall 6.08 may be the continuing structured as a merger, consolidation or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityamalgamation.
Appears in 1 contract
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 jurisdiction so long as the Borrower remains organized under the laws of in the United States or any state thereof and does not become a regulated entityStates); provided that the such Borrower (as a newly recognized entity) shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or and (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 the Borrower) may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form if the Lead Borrower determines in good faith that such action is in the best interest of Albertson’s Group and if not materially disadvantageous to the Lenders (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 Lead Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (i) the transferee must be a 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 Section 7.02 (other than clause (e) of the definition of “Permitted Investments”) and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, a Borrower may merge with any other Person; provided that (i) 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 a Borrower (any such Person, the “Successor Company”), (A) the Successor 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 Company shall expressly assume all the obligations of such Borrower under this Agreement and the other Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Agent, (C) each Loan Party, unless it is the other party to such merger or consolidation, shall have confirmed that its obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor Company’s obligations under the Loan Agreements, (D) each 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 Security Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, and (E) 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 Security Document comply with this Agreement; provided further that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom (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 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by 6.11 and Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(df) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that and
(ig) if any merger, dissolution, liquidation, consolidation or Disposition in connection with the Borrower is a party thereto, the Borrower Restatement Effective Date Transactions shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitypermitted; and
(fh) any merger, dissolution, liquidation, consolidation or Disposition contemplated by the Borrower may merge Rite Aid Acquisition Agreement or, to the extent not materially adverse to the Lenders, otherwise in connection with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower Rite Aid Acquisition shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitypermitted.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Albertsons Companies, 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 Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that when any Restricted wholly-owned Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party the wholly-owned Subsidiary shall be the continuing or surviving Person Person;
(b) any Subsidiary may Dispose of all or substantially all of its assets (Bupon voluntary liquidation or otherwise) to the extent constituting an InvestmentBorrower or to another Subsidiary; provided that if the transferor in such a transaction is a wholly-owned Subsidiary, such Investment then the transferee must either be an Investment in the Borrower or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelya wholly-owned Subsidiary;
(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 (ii) any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal formform if the Borrower determines in good faith that such action is in the interest of the Borrower and its Subsidiaries;
(cd) so long as no Event any consolidation of Default exists the Borrower with or would result therefrommerger of the Borrower into any other Person or Persons (whether or not affiliated with the Borrower), or successive consolidations or mergers to which the Borrower or its successor or successors shall be a party or parties, provided, however, that, the Borrower hereby consents and agrees that, upon any such consolidation or merger, the due and punctual payment of the principal of and interest on all of the Loans and the due and punctual performance and observance of all of the covenants, conditions and other obligations of this Agreement and the Notes to be performed and observed by the Borrower, shall be expressly assumed in an agreement satisfactory in form and substance to the Administrative Agent and the Lenders, executed and delivered to the Administrative Agent by the Person formed by such consolidation or merger, provided, further, that the Person formed by such consolidation or merger shall be a Person organized and existing under the laws of the United States, any Restricted state thereof or the District of Columbia, and provided, further, that immediately before and after giving effect to any such transaction (and treating any Consolidated Funded Indebtedness or Sale and Leaseback Transaction which becomes an obligation of the resulting or surviving Person as a result of such transaction as having been incurred or entered into by such Person at the time of such transaction), no Default shall exist. Unless the conditions prescribed above in this Section 7.04(d) are satisfied, no such consolidation or merger shall be permitted;
(e) the Borrower or any Subsidiary may merge with any other Person in order to effect an Investment expressly permitted pursuant to Section 7.02Sections 7.02(e) and (f); and
(f) with respect to any Subsidiary, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition expressly permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto7.05(c)(i), the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, and (ii) so long as there exists no Default before and after giving effect to such Disposition, Dispositions made in accordance with the Borrower or such surviving Person shall be organized under the laws terms of the United States Section 7.05(c)(ii), or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
of Sections 7.05(e), (f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that or (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityg).
Appears in 1 contract
Sources: Credit Agreement (Telephone & Data Systems Inc /De/)
Fundamental Changes. Merge, dissolve, divide, liquidate, amalgamate, consolidate with or into another Person or enter into any statutory arrangement or reorganization, 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 with (i) of the Borrower (including a mergermay merge, amalgamate, dissolve, liquidate, or consolidate with the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity)Borrower; provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any Subsidiary may merge, amalgamate, dissolve, liquidate, or consolidate with any one or more other Restricted Subsidiaries, or enter into a statutory arrangement or reorganization not involving any compromise of the Indebtedness comprised in the Obligations; provided that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) Subsidiary that is not a Loan Party (x) the Guarantor shall be the continuing or surviving Person or Person, (By) to the extent constituting an Investment, such Investment must be an a Permitted Investment or Restricted Payment of the type described in or Indebtedness clause (4) of the definition of “Restricted Payment” that is permitted by Sections 7.02(cto be made, and is made, pursuant to Section 7.05 and (z) and 7.03(b)(iv)to the extent constituting a Disposition, respectivelysuch Disposition must be permitted hereunder;
(i) any Subsidiary that is not a Loan Party may merge merge, amalgamate, dissolve, liquidate 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 dissolve, or any Subsidiary of the Borrower may change its legal form, if the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and is not disadvantageous to the Lenders 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 or will concurrently become a Guarantor in the same jurisdiction, the United States, any state or commonwealth thereof, the District of Columbia, Canada, any province or territory thereof or any other jurisdiction reasonably acceptable 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) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the continuing transferee must either be the Borrower or surviving Person shall be another Subsidiary that is or will concurrently become a Restricted SubsidiaryGuarantor in the same jurisdiction, which together with each the United States, any state or commonwealth thereof, the District of its Restricted SubsidiariesColumbia, shall have complied with Canada, any province or territory thereof or any other jurisdiction reasonably acceptable to the requirements of Section 6.12Administrative Agent, and (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a Permitted Investment or Restricted Payment of the type described in clause (4) of the definition of “Restricted Payment” that is permitted Investment in accordance with to be made, and is made, pursuant to Section 7.027.05;
(d) the Borrower and its Restricted Subsidiaries any Subsidiary may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a mergermerge, dissolutionamalgamate or consolidate with, liquidation or consolidationliquidate or dissolve into, the purpose of which is any other Person in order to effect a Disposition Permitted Investment or Restricted Payment of the type specified in Section 7.05(4) that is permitted to be made, and is made, pursuant to Section 7.05 and any Permitted Investment or Restricted Payment of the type specified in Section 7.05(4) that is permitted to be made, and is made, pursuant to Section 7.05, may be structured as a merger, consolidation or amalgamation; provided provided, that (i) if the Borrower is a party theretoto such merger, consolidation or amalgamation, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, and (ii) the Borrower if a Guarantor is party to such merger, consolidation or amalgamation, such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower Guarantor shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of Person; and
(e) the Borrower and the other Subsidiaries may consummate the Transactions. provided that in a manner the case of (a) through (e) above, the Borrower shall have (i) provided fifteen (15) days’ prior written notice to the Administrative Agent prior to any Canadian Loan Party consummating such transactions (unless waived by the Administrative Agent), and (ii) delivered such documents as the Administrative Agent reasonably requires including, if applicable (x) an acknowledgement and confirmation with respect to such Canadian Loan Party’s obligations under this Agreement and the other Loan Documents, and (y) an opinion of counsel to such Canadian Loan Party in form acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, amalgamate, consolidate 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 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 may merge merge, amalgamate or consolidate with (i) the Borrower Borrower; provided that (including a merger, the purpose of which is to reorganize A) the Borrower into shall be a new jurisdiction so long as the Borrower remains Person organized under the laws of the United States or States, any state thereof or the District of Columbia, and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or (B) the surviving Person shall expressly assume provide any documentation and other information about such Person as shall have been reasonably requested in writing by any Lender through the obligations 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 Borrower in a manner reasonably acceptable to the Administrative AgentUSA PATRIOT Act, or (ii) any one or more other Restricted Subsidiaries; provided that when (x) any Restricted Subsidiary that is not a Controlled Foreign Subsidiary or FSHCO may not merge with any Restricted Subsidiary that is a Loan Party Controlled Foreign Subsidiary or FSHCO if such Controlled Foreign Subsidiary or FSHCO shall be the continuing or surviving Person and (y) when any Guarantor is merging with another Restricted Subsidiary, Subsidiary that is not a Loan Party either (A) a Loan Party the Guarantor shall be the continuing or surviving Person or (B) such merger, amalgamation or consolidation shall be deemed to constitute either an Investment or disposition, as elected by the extent constituting an InvestmentBorrower, and such Investment must be an a Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Section 7.01, respectively or such disposition must be a disposition permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyhereunder;
(ib) 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 (other than the Borrower) may liquidate or dissolve dissolve, or the Borrower or any Restricted Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby and subject to compliance with Sections 6.12, 6.14 and 6.15, as applicable) change its legal form if the Borrower determines in good faith that such action is in the best interest of Holdings and its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that in the case of any dissolution of a Restricted Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted 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 Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder and, in each case, will comply with Section 6.12, 6.14 and 6.15, as applicable);
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to any 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 in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent and (ii) to the extent constituting an Investment or disposition, such Investment must be a Permitted Investment or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Section 7.01, respectively, or such disposition must be a disposition permitted hereunder; provided, further, that the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Loan Party;
(d) any Restricted Subsidiary may merge, amalgamate or consolidate with, or dissolve into, any other Person Person, or consummate a Divisions as the Dividing Person, in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted SubsidiaryPermitted 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 6.12, 6.12 and (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a Permitted Investment and (iii) to the extent constituting a Disposition, such Disposition must be permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionhereunder;
(e) the Borrower and its any Restricted Subsidiaries Subsidiary that is an LLC may consummate a mergerDivision as the Dividing Person if, dissolution, liquidation or consolidationimmediately upon the consummation of the Division, the purpose assets of which 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 otherwise result in an Asset Sale permitted by Section 7.04; provided that if the Dividing Person is a Guarantor, then any Division Successor other than the Dividing Person shall become a Guarantor to the extent required by and in accordance with Section 6.12 and the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Collateral Documents shall be maintained or created to the extent required by and in accordance with the provisions of Section 6.12, 6.14 and 6.15, as applicable;
(f) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person or consummate a Division as the Dividing Person in order to effect a Disposition permitted pursuant to Section 7.05; provided that 7.04 (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityother than Dispositions permitted by Section 7.03); and
(fg) the Borrower any Permitted Investment may merge with be structured as a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing merger, consolidation or surviving Person amalgamation or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityDivision.
Appears in 1 contract
Sources: Credit Agreement (Allison Transmission Holdings 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 all or substantially all of its property or business, except that:
(a) any Restricted Subsidiary may merge with (i) So long as no Default or Event of Default shall have occurred and be continuing, the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted SubsidiaryPerson; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (iA) the Borrower shall be the continuing or surviving Person or the Person formed by or surviving Person shall expressly assume the obligations of the Borrower in any such merger or consolidation is (x) a manner reasonably acceptable to the Administrative Agent, corporation or (iiy) the Borrower partnership or such surviving Person shall be limited liability company organized or existing under the laws of the United States or States, any state thereof or the District of Columbia (such Person, if not the Borrower, the “Successor Borrower”), and, in the case of clause (y), the Lenders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such merger or consolidation and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such merger or consolidation had not occurred, (B) the Successor Borrower (if applicable) expressly assumes all the obligations of the Borrower under the Loan Documents and the Loans pursuant to an assumption agreement or other documents or instruments in form reasonably satisfactory to the Administrative Agents, (C) each Guarantor, by supplement to the Domestic Subsidiary Guarantee, confirms that the guarantee made by it pursuant thereto shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Loan Party, by supplement to each applicable Security Document, confirms that the liens granted by it thereunder shall secure the Successor Borrower’s obligations under this Agreement, (E) if requested by the Administrative Agents, each mortgagor of a Mortgaged Property, by an instrument reasonably satisfactory to the Collateral Trustee, confirms that the liens granted by it thereunder shall secure the Successor Borrower’s obligations under this Agreement, (F) each Lender shall have received, to the extent not previously delivered to such Lender, all documentation and other information required by bank regulatory authority under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (G) the Borrower delivers to the Administrative Agents an officer’s certificate and an opinion of counsel to the effect that such merger or consolidation, and the supplements referred to in the preceding clauses, comply with this Agreement. Notwithstanding the foregoing, the Borrower and any of its Restricted Subsidiaries may (x) merge with an Affiliate that has no material assets or liabilities and that is incorporated or organized solely for the purpose of reincorporating or reorganizing the Borrower, as the case may be, in any state of the United States or the District of Columbia and (y) may otherwise convert its legal form under the laws of its jurisdiction of organization. The Lenders hereby authorize the Administrative Agents to enter into and deliver such agreements, amendments and modifications to the Loan Documents as are necessary to effectuate any such transaction consummated pursuant to this clause (a) and to substitute the Successor Borrower for the Borrower under the Loan Documents and the Loans;
(b) So long as no Default or Event of Default shall have occurred and be continuing, any Person may merge into or consolidate with or amalgamate with any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary and (if any party to such merger or consolidation or amalgamation is a Guarantor or a Wholly Owned Subsidiary Guarantor) a Guarantor or a Wholly Owned Subsidiary Guarantor, as the case may be;
(c) any Group Member may Dispose of any or all of its assets (including transfers of Intercompany Loans or equity Investments) to any other Group Member; provided that if the Borrower or any Restricted Subsidiary that is not an Excluded Subsidiary Disposes of assets to a Restricted Subsidiary that is an Excluded Subsidiary, such Disposition complies with Section 6.08(h), (u) or (x);
(d) any Investment expressly permitted by Section 6.08 may be structured as a merger, consolidation or amalgamation;
(e) any Restricted Subsidiary which has Disposed of all of its assets as permitted under this Section 6.04 and Section 6.05 or otherwise has no assets may be liquidated;
(f) the Group Members may consummate the transactions contemplated under (i) the Tax Restructuring, (ii) the Business Segmentation Restructuring Plan or (iii) the Borrower Permitted Corporate Structure Transactions;
(g) any Joint Venture may be liquidated; provided that (x) the assets and liabilities thereof are distributed to the owners of such Joint Venture, pro rata, in accordance with such owners’ respective equity interests in such Joint Venture and (y) the Net Cash Proceeds thereof are applied to prepay the Loans, to the extent required by Section 2.15 or such surviving person shall Section 2.16, as applicable; and
(h) any Restricted Subsidiary that is not a Guarantor may be liquidated or dissolved after the 2014 Amendment Effective Date (i) into a regulated entityGroup Member or (ii) to effectuate a Disposition permitted under Section 6.05.
Appears in 1 contract
Sources: Term Loan and Revolving Credit Agreement (Federal-Mogul Holdings Corp)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary (other than NMTC Subsidiaries to the extent not reasonably expected to result in a Material Adverse Effect) to, liquidate, merge into or consolidate with any other Person, or permit any other Person to merge into another Personor consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, provided that both immediately before and after giving effect thereto, no Event of Default shall or would exist:
(a) any Restricted Subsidiary may merge with (i) the Borrower may merge or consolidate with any Person, provided that (including a mergerA) the Borrower shall be the surviving entity thereof, (B) the Borrower shall have satisfied the notice requirements in Section 6.1(e) with respect thereto, and (C) immediately after giving effect thereto, the purpose Loan Parties shall be in compliance on a pro forma basis with all Financial Covenants as of which is to reorganize the most recent fiscal quarter end (assuming, for purposes of the Financial Covenants, that all mergers, acquisitions and dispositions consummated since the first day of such fiscal quarter, had occurred on the first day of such fiscal quarter);
(ii) the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States may merge or consolidate with any state thereof and does not become a regulated entity); Subsidiary Guarantor, provided that the Borrower shall be the continuing surviving entity;
(iii) [reserved];
(A) any Subsidiary may merge or surviving Person consolidate with or the surviving Person shall expressly assume the obligations of into the Borrower in a manner reasonably acceptable to transaction in which the Administrative AgentBorrower is the surviving Person, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to any Subsidiary Guarantor may merge or consolidate with or into any Subsidiary in a transaction in which a Subsidiary Guarantor is the extent constituting an Investmentsurviving Person, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(iC) any Excluded Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary (including another Excluded Subsidiary) in a transaction in which such other Subsidiary is the surviving Person;
(v) any Subsidiary may merge or consolidate with any other Person, provided that (A) immediately after giving effect thereto, no Default shall or would exist, and (B) either (1)(a) such Subsidiary is the surviving Person, and (b) such merger or consolidation is not a Loan Party prohibited by Section 7.5, or (2)(a) such other Person is the surviving Person, and (b)(i) such merger or consolidation is not prohibited by Section 7.7, or (ii) any Subsidiary (other than the Borrower) may liquidate such merger or dissolve or change its legal form;
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with any consolidation is not prohibited by Section 7.5 and such other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of shall become a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment Guarantor in accordance with Section 7.026.11;
(dvi) (A) the Borrower may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to any Subsidiary Guarantor, (B) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to any other Subsidiary Guarantor (upon voluntary liquidation or dissolution or otherwise), and (C) any Excluded Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its Restricted Subsidiaries may consummate assets to the AcquisitionBorrower or any Subsidiary (upon voluntary liquidation or dissolution or otherwise);
(evii) the Borrower and any Subsidiary may sell, transfer, lease or otherwise dispose of its Restricted Subsidiaries may consummate assets in a mergertransaction that is not otherwise permitted by this Section 7.3(a), dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower such sale, transfer, lease or other disposition is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitypermitted by Section 7.7; and
(fviii) any Subsidiary may liquidate, wind up or dissolve so long as (A) the Borrower may merge with assets of any such Subsidiary that is a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant Guarantor are transferred to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or another Subsidiary Guarantor, or (B) the assets of any such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) Subsidiary that is an Excluded Subsidiary are transferred to the Borrower or such surviving person a Subsidiary.
(b) The Borrower will not, and will not permit any Subsidiary thereof (other than NMTC Subsidiaries to the extent not reasonably expected to result in a Material Adverse Effect) to, engage in any business other than businesses of the type conducted by the Borrower and the Subsidiaries on the Fourth Restatement Effective Date, the ownership of the Equity Interests of any Liberty Subsidiary or the Contributed Ventures Assets, and businesses which are now, or which in the future shall not be have become, reasonably related thereto or a regulated entityreasonable extension thereof.
Appears in 1 contract
Sources: Credit Agreement (Gci Liberty, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a) Each of Holdco and the Borrower will not, and the Borrower will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, consummate a Division as the Dividing Person or liquidate or dissolve, except that if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (A) any Person may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to transaction in which the Administrative AgentBorrower is the surviving corporation, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) any Person may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary and (if any party to such merger is a Guarantor) is (or upon consummation of such merger becomes in accordance with the terms of this Agreement) a Guarantor, (C) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) Lenders and 7.03(b)(iv), respectively;
(iD) any Subsidiary that is an LLC 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 Subsidiaries that are Guarantors at such time, or, with respect to assets not so held by one or more Subsidiaries that are Guarantors, such Division, in the aggregate, would otherwise result in an Asset Disposition permitted by Section 6.04(o); provided that any such merger involving a Person that is not a Loan Party may merge or consolidate with or into wholly-owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04; provided further that, notwithstanding anything to the contrary in this Agreement, any other Subsidiary which is a Division Successor resulting from a Division of assets of a Subsidiary that is not a Loan Party an Insignificant Subsidiary may not be deemed to be an Insignificant Subsidiary at the time of or in connection with the applicable Division.
(b) Each of Holdco and (ii) the Borrower will not, and will not permit any Subsidiary (of its Subsidiaries to, engage to any material extent in any business other than the Borrower) may liquidate or dissolve or change its legal form;Permitted Businesses.
(c) so long as no Event Each of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) Holdco and the Borrower and will not change its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose jurisdiction of which is organization to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of any jurisdiction outside the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityStates.
Appears in 1 contract
Sources: Superpriority Secured Debtor in Possession Credit Agreement (Windstream Services, LLC)
Fundamental Changes. MergeThe Borrower will not, dissolveand will not permit any of its Subsidiaries to, liquidatemerge into or consolidate into any other Person, or permit any other Person to merge into or consolidate with it, or into another Personsell, except that:
lease, transfer or otherwise Dispose of (ain a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the Capital Stock of any Restricted Subsidiary may merge with of their Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided that if, at the time thereof and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (i) the Borrower (including or any Subsidiary may merge with a merger, the purpose of which is to reorganize Person if the Borrower into a new jurisdiction so long as (or such Subsidiary if the Borrower remains organized under the laws of the United States or any state thereof and does is not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or party to such merger) is the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted SubsidiariesSubsidiary may merge into another Subsidiary; provided that when if any Restricted Subsidiary that party to such merger is a Loan Party is merging with another Restricted SubsidiaryParty, (A) a the Loan Party shall be the continuing or surviving Person or Person, (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(iiii) any Subsidiary may sell, transfer, lease or otherwise Dispose of all or substantially all of its assets to the Borrower or to a Loan Party, and (iv) any Subsidiary of the Borrower may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided, further, that any such merger involving a Person that is not a Loan Party may merge or consolidate with or into any other wholly owned Subsidiary that is immediately prior to such merger shall not a Loan Party and (ii) any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form;
(c) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment be permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be unless also permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity8.04.
Appears in 1 contract
Fundamental Changes. Merge(i) Liquidate or dissolve; (ii) consummate, dissolveor permit any of Borrower’s Subsidiaries to consummate, liquidateany Change of Control; or (iii) acquire, consolidate with or into permit any of Borrower’s Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person, except that:Person other than Permitted Investments.
(ab) any Restricted Subsidiary Notwithstanding anything to the contrary in this Section 6.4, Borrower may merge with enter into a transaction that will constitute a Change of Control so long as: (i) the Person that results from such Change of Control (the “Surviving Entity”) shall have executed and delivered to Agent and Lenders an agreement in form and substance reasonably satisfactory to Agent and Lenders, containing an assumption by the Surviving Entity of the due and punctual payment and performance of all Obligations and performance and observance of each covenant and condition of Borrower in the Loan Documents; (including ii) all such obligations of the Surviving Entity to Lenders shall be guaranteed by any Person that directly or indirectly owns or controls 50% or more of the voting stock of the Surviving Entity; (iii) immediately after giving effect to such Change of Control, no Event of Default or, event which with the lapse of time or giving of notice or both, would result in an Event of Default shall have occurred and be continuing; and (iv) the credit risk to Lenders, in each Lender’s commercially reasonable discretion, with respect to the Obligations and the Collateral shall not be increased. In determining whether the proposed Change of Control would result in an increased credit risk, Lenders may consider, among other things, changes in Borrower’s management team, employee base, access to equity markets, venture capital support, financial position and/or disposition of intellectual property rights which may reasonably be anticipated as a mergerresult of the Change of Control.
(c) In addition, notwithstanding anything to the purpose of contrary in this Section 6.4, (i) a Subsidiary which is to reorganize the not a co-Borrower into a new jurisdiction so long as the Borrower remains organized under the laws or guarantor of the United States Obligations may merge or any state thereof and does not become consolidate into another Subsidiary; (ii) a regulated entity); Subsidiary which is a co-Borrower or guarantor of the Obligations may merge or consolidate into another Subsidiary provided that the Borrower shall be the continuing or surviving Person is a co-Borrower or the surviving Person shall expressly assume the obligations guarantor of the Obligations; and (iii) Borrower in a manner reasonably acceptable to the Administrative Agent, may consolidate or (ii) merge with any one or more other Restricted Subsidiaries; of Borrower’s Subsidiaries provided that when any Restricted Subsidiary that Borrower is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityPerson.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, or effect a Division, except that:
(a) Holdings or any Restricted Subsidiary may merge merge, amalgamate or consolidate with (i) the Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that that:
(i) the Borrower shall be the continuing or surviving Person Person;
(ii) such merger, amalgamation or consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States, any state thereof or the surviving Person District of Columbia; and
(iii) in the case of a merger, amalgamation or consolidation of Holdings with and into the Borrower, (A) no Event of Default shall exist at such time or after giving effect to such merger, amalgamation or consolidation, (B) Holdings shall have no direct Subsidiaries at the time of such merger, amalgamation or consolidation other than the Borrower, (C) after giving effect to such merger, amalgamation 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 party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (D) such direct parent of the Borrower shall concurrently become a Guarantor and pledge 100% of the Equity Interest of the Borrower to the Administrative Agent as Collateral to secure the Obligations in a manner form reasonably acceptable satisfactory to the Administrative Agent, or ;
(iib) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiarymay merge, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(i) any Subsidiary that is not a Loan Party may merge amalgamate or consolidate with or into any other Restricted Subsidiary or liquidate or dissolve; provided, that if such Restricted Subsidiary is not a Loan Party, the surviving Person (or the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be a Loan Party unless the transfer of the assets and operations of such Loan Party to a Non-Loan Party would have been permitted as an Investment under Section 7.02 (it being understood that any such merger, consolidation, amalgamation, dissolution or liquidation shall be deemed to have used the capacity under the relevant clause of Section 7.02); provided, further, if any such Restricted Subsidiary is a Co-Borrower, (i) the Co-Borrower shall be the surviving Person or (ii) any Loans borrowed by such Co-Borrower shall be expressly assumed by the Borrower or another Co-Borrower;
(c) any merger or amalgamation the purpose of which is to reincorporate or reorganize a Restricted Subsidiary in another jurisdiction shall be permitted;
(other than the Borrowerd) any Restricted Subsidiary may liquidate or dissolve or change its legal form; provided (i) no Event of Default shall result therefrom and (ii) the surviving Person (or the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be a Restricted Subsidiary; provided, further, if any such Restricted Subsidiary is a Co-Borrower, (x) the surviving Person (or the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be the Borrower or another Co-Borrower or (y) any Loans borrowed by such Co-Borrower shall be expressly assumed by the Borrower or another Co-Borrower;
(ce) so long as no Event of Default exists or would result therefrom, the Borrower may merge, amalgamate 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, amalgamation 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 or the District of 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;
(C) each Guarantor, unless it is the other party to such merger, amalgamation 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 Loan Party, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to the Security Agreement or the Canadian Security Agreement, as applicable, confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and the direct parent of such Person shall pledge 100% of the Equity Interests of such Person to the Administrative Agent as Collateral to secure the Obligations; and
(E) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement, and, with respect to such opinion of counsel only, including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; it being agreed that if the foregoing are satisfied, the Successor ▇▇▇▇▇▇▇▇ will succeed to, and be substituted for, the Borrower under this Agreement;
(f) any Restricted Subsidiary may merge merge, amalgamate or consolidate with any other Person in order to effect an Investment Investment, Acquisition Transaction or other transaction not prohibited by the Loan Documents (other than any transaction pursuant to Section 7.02(o)); provided, if any such Restricted Subsidiary is a Co-Borrower, (i) the Co-Borrower shall be the surviving Person or (ii) any Loans borrowed by such Co-Borrower shall be expressly assumed by the Borrower or another Co-Borrower;
(g) any Loan Party or any Restricted Subsidiary may conduct a Division that produces two or more surviving or resulting Persons; provided that
(i) if a Division is conducted by the Borrower or a Co-Borrower, then each surviving or resulting Person shall constitute a “Borrower” or “Co-Borrower” for all purposes of the Loan Documents (unless the Administrative Agent otherwise consents in its reasonable discretion) and shall remain jointly and severally liable for all Obligations (other than Excluded Swap Obligations, where applicable) of the Borrower immediately prior to such Division and otherwise comply with Section 7.04(e);
(ii) if a Division is conducted by Holdings, then all of the Equity Interests of the Borrower must be owned by only one Person that survives or results from such Division, and such Person owning such Equity Interests in the Borrower shall otherwise comply with Section 7.10(b), become a Guarantor and pledge 100% of the Equity Interests of the Borrower to the Collateral Agent; and
(iii) if a Division is conducted by a Loan Party other than the Borrower or Holdings, then each surviving or resulting Person of such Division shall also be a Loan Party unless and to the extent any such surviving or resulting Loan Party is the subject of a Disposition permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as 7.05 (other than Section 7.05(e)) or otherwise would constitute an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Excluded Subsidiary; provided further that (i) such surviving or resulting Person not becoming a Loan Party and the continuing assets and property of such surviving or surviving resulting Person not becoming Collateral shall, in each case, be treated as an Investment and shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of permitted under this Section 6.12, (ii7.04(g)(iii) solely to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with under Section 7.02;
(dh) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate as long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 or a Permitted Reorganization (other than Section 7.05(e)); provided that and
(i) if the Borrower is Transactions may be consummated. Notwithstanding anything herein to the contrary, in the event of any merger, dissolution, liquidation, consolidation, amalgamation or Division of any Loan Party or a party theretoRestricted Subsidiary effected in accordance with this Section 7.04, the Borrower shall or shall cause, with respect to each surviving or continuing Restricted Subsidiary (or new direct Parent Entity) (a) promptly deliver or cause to be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable delivered to the Administrative AgentAgent for further distribution by the Administrative Agent to each Lender (i) such information and documentation reasonably requested by the Administrative Agent or any Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) a Beneficial Ownership Certification and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Borrower Administrative Agent or such surviving Person shall be organized under Collateral Agent may reasonably request in order to perfect or continue the laws perfection of the United States Liens granted or any state thereof purported to be granted by the Collateral Documents in accordance with Section 6.11 and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityas promptly as practicable.
Appears in 1 contract
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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the Borrower shall be the continuing or surviving Person and such merger does not result in the Borrower ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the surviving Person shall expressly assume the obligations District of the Borrower in a manner reasonably acceptable to the Administrative Agent, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 the Borrower) 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 interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders 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 be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively; and
(d) so long as no Event of 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 Company”), (A) the Successor 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 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 confirmed that its Guaranty shall apply to the Successor Company’s obligations under the 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 Company’s obligations under the 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 Company’s obligations under the 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 preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement; and
(e) so long as no Default exists or would result therefrom (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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) 6.11 to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) required pursuant to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02Collateral and Guarantee Requirement;
(df) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that and
(i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (iig) the Borrower and its Subsidiaries may consummate Permitted Intercompany Activities and, the Spin-Off Transaction, the Timeshare Disposition (individually or such surviving Person shall be organized under in the laws of aggregate) and the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityCorporate Realignmentrelated transactions.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that:
(a) any Restricted Subsidiary may merge with or liquidate into (i) the any Borrower (including a merger, the purpose of which is to reorganize the any Borrower into a new jurisdiction so long as (x) the US Borrower remains organized under the laws of the United States or States, any state thereof or the District of Columbia and does not become a regulated entity(y) any other Borrower remains organized under the Laws of its current jurisdiction or the Laws of another jurisdiction that permits all payments required to be made by such Borrower hereunder and under the other Loan Documents to be made free and clear of and without deduction for any Taxes or such Borrower agrees to indemnify each Agent and each Lender for the full amount of such Taxes and any liability arising therefrom or with respect thereto in the manner provided in Article 3 (the requirements set forth in this clause (y) and the foregoing clause (x), collectively, the “Jurisdictional Requirements”)); provided that the such Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the such Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) Section 7.02 and 7.03(b)(iv), respectivelyany Indebtedness corresponding to such Investment must be permitted by Section 7.03;
(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 any Borrower) may liquidate or dissolve or change its legal formform if the BR Borrower determines in good faith that such action is in the best interests of the BR Borrower;
(c) so long as no Event of Default exists or would result therefrom, the BR Borrower or any Restricted Subsidiary may merge with any other Person in order to (i) effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 7.02 (provided that (iA) 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 6.12, 6.12 and (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iiiB) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02) or (ii) to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 6.16; provided that if any Borrower is a party to any transaction effected pursuant to this Section 7.04(c), (1) such Borrower shall be the continuing and surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent and (2) the Jurisdictional Requirements shall be satisfied;
(d) the BR Borrower and its Restricted Subsidiaries may consummate the Acquisition;Acquisition and the transactions contemplated thereby (including the corporate restructuring transactions previously disclosed to the Administrative Agent); and
(e) the Borrower and its Restricted Subsidiaries may consummate so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected; provided that (i) if the any Borrower is a party theretoto any transaction effected pursuant to this Section 7.04(e), the (i) such Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of the such Borrower in a manner reasonably acceptable to the Administrative Agent, Agent and (ii) the Borrower or such surviving Person Jurisdictional Requirements shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitysatisfied.
Appears in 1 contract
Fundamental Changes. MergeNeither the Borrower 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 (other than as part of the Transaction or the 2015 Transactions), 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted SubsidiarySubsidiary under clause (a), (Ax) a Loan Party shall be the continuing or surviving Person Person; or (By) to the extent constituting an Investment, such Investment must be an a permitted Investment in or Indebtedness permitted by of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02(c7.02 and 7.05 or the definition of Permitted Investment (other than clause (d) and 7.03(b)(ivthereof), respectively;
; (b) (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 if the Borrower determines in good faith that such action is in the best interest of the Borrower and its legal form;
Subsidiaries and if not materially disadvantageous to the Lenders; (c) the Borrower or 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 the Borrower or a Guarantor, then (i) the transferee must be the Borrower or a Guarantor 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 7.05 or the definition of Permitted Investment (other than clause (d) thereof), respectively; and (d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall 156 1002217597 1001820109v3 be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation (any such Person, the “Successor Company”) is not the Borrower, (A) the Successor 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 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 confirmed that its Guarantee shall apply to the Successor Company’s obligations under the 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 Company’s obligations under the Loan Documents, (E) each mortgagor of a parcel of Real Property that is subject to a Mortgage, 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 Company’s obligations under the Loan Documents[reserved], (E) [reserved], 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; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement; (e) so long as no 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 thereof, the District of Columbia or any territory thereof, (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, (C) each other 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, (D) each other 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 Company’s obligations under the Loan Documents, (E) each mortgagor of a parcel of Real Property that is subject to a Mortgage, 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 Company’s obligations under the Loan Documents[reserved], (E) [reserved], and (F) such Guarantor 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 157 1002217597 1001820109v3 Agreement; 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 Default exists or would result therefrom, the Borrower or any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary7.05; 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 requirements of Section 6.126.11; and (g) so long as no Default exists or would result therefrom, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.04; provided that and (ih) if any Restricted Subsidiary may dispose of the Borrower is a party theretoEquity Interests of the Target, to the extent constituting Margin Stock. Section 7.04Dispositions. The Borrower shall be not, and shall not permit any of its Restricted Subsidiaries to, consummate any Disposition, except: (a) any disposition of Cash Equivalents or Investment Grade Securities or obsolete or worn out equipment or other assets in the continuing ordinary course of business or surviving Person any disposition of inventory or goods (or other assets) held for sale in the surviving Person shall expressly assume ordinary course of business; (b) the obligations disposition of all or substantially all of the assets of the Borrower in a manner reasonably acceptable permitted pursuant to Section 7.03 or any disposition that constitutes a Change of Control pursuant to this Agreement; (c) the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment; (d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) of less than $75,000,000;[reserved]; (e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary of the Borrower to the Administrative AgentBorrower or by the Borrower or a Restricted Subsidiary of the Borrower to another Restricted Subsidiary of the Borrower; (f) to the extent allowable under Section 1031 of the Internal Revenue Code of 1986, or any comparable or successor provision, any exchange of like property (iiexcluding any boot thereon) for use in a Similar Business; 158 1002217597 1001820109v3
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business; (h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary; (i) foreclosures on assets; (j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility; (k) any financing transaction with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date, including Sale and Lease-Back Transactions and asset securitizations permitted by this Agreement; (l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three years); (m) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole; (o) (1) Dispositionsany Permitted Asset Swap in which the Borrower or such surviving Person shall be organized under Restricted Subsidiary, as the laws case may be, receives consideration at the time of such DispositionPermitted Asset Swap at least equal to the fair market value (as determined in good faith by the Borrower) of the United States assets sold or any state thereof otherwise disposed of; and (iii2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such surviving person shall not be a regulated entity; and
(f) Restricted Subsidiary, as the Borrower case may merge with a Subsidiary be, is in the form of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02cash or Cash Equivalents; provided that the amount of: (i) any liabilities (as shown on the Borrower shall be Borrower’s or such Restricted Subsidiary’s most recent consolidated balance sheet or in the continuing footnotes thereto, or surviving Person if incurred or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable accrued subsequent to the Administrative Agentdate of such balance sheet, (iisuch liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such surviving Person shall be organized under Restricted Subsidiary, other than liabilities that are by their terms subordinated to the laws Obligations, that are assumed by the transferee of any such assets (or are otherwise extinguished by the United States or any state thereof and (iiitransferee in connection with the transactions relating to such Disposition) the Borrower or such surviving person shall not be a regulated entity.159 1002217597 1001820109v3
Appears in 1 contract
Fundamental Changes. MergeMerge and amalgamate, 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 (other than as part of the Transaction), except that:
(a) any Restricted Subsidiary Party (other than a Loan Party) may merge and amalgamate with any Restricted Party;
(b) any Disposition permitted under Section 6.05;
(c) any Restricted Subsidiary (other than a Loan Party) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Borrower or to another Restricted Subsidiary of a Borrower; and
(d) so long as no Default exists or would result therefrom, such Restricted Party may merge, consolidate or amalgamate with any other Person; provided that (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other such Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger, amalgamation or consolidation is not such Borrower (any such Person, the Successor Borrower), (A) the Successor Borrower shall be an entity in the same corporate form organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Successor Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in a manner form reasonably acceptable satisfactory to the Administrative Agent, (C) after giving effect to such transaction and the use of any proceeds therefrom, the Company would have the ability to incur (i) an additional $1.00 of Indebtedness under Section 7.03(r) of the Senior Facility Credit Agreement or (ii) the Borrower or Consolidated Fixed Charge Coverage Ratio under (and as defined in) the Senior Facility Credit Agreement at the time of such surviving Person shall be organized under transaction and after giving pro forma effect thereto as if such transaction had occurred at the laws beginning of the United States applicable four (4)-quarter period will be equal to or any state thereof greater than it was immediately before such transaction; and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (iD) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable have delivered to the Administrative AgentAgent a certificate of a Financial Officer and an opinion of counsel, (ii) each stating that such merger, amalgamation or consolidation and such supplement to this Agreement or any Loan Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower, will succeed to, and be substituted for, the Borrower or under this Agreement; provided, further that, unless such surviving Person shall be organized under the laws person is a Borrower, neither Millennium Chemicals Inc. nor Millennium Holdings LLC nor any of their respective Subsidiaries as of the United States Effective Date may be merged with or into any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityRestricted Party.
Appears in 1 contract
Fundamental Changes. MergeThe Parent will not, dissolvenor will it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation, winding up or dissolution). The Parent will not, nor will it permit any of its Restricted Subsidiaries to, acquire any business or property from, or Equity Interests in, or be a party to any acquisition of, any Person except thatfor purchases of inventory and other property to be sold or used in the ordinary course of business, Investments and Acquisitions permitted under Section 8.05 and Capital Expenditures. The Parent will not, nor will it permit any of its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its business or property, whether now owned or hereafter acquired (including receivables and leasehold interests, but excluding (x) obsolete or worn-out property, tools or equipment no longer used or useful in its business and (y) any inventory or other property sold or disposed of in the ordinary course of business and on ordinary business terms). Notwithstanding the foregoing provisions of this Section 8.04:
(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 so long as the Borrower remains organized under the laws of the United States be merged or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(i) any Subsidiary that is not a Loan Party may merge or consolidate consolidated with or into any other Subsidiary so long as at the time thereof and after giving effect thereto no Default shall have occurred and be continuing; provided that is not a Loan Party and if any party to such transaction shall be an Obligor, the surviving or continuing entity must be or become an Obligor;
(iib) any Restricted Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its property (upon voluntary liquidation, winding up, dissolution or otherwise) to any other than Restricted Subsidiary so long as at the Borrowertime thereof and after giving effect thereto no Default shall have occurred and be continuing; provided that if such sale is of all or substantially all of the assets of an Obligor, either (A) may liquidate the acquiring Subsidiary must be or dissolve become an Obligor or change its legal form(B) such sale must be for cash for fair market value, as determined by the Company in good faith (and, if such fair market value shall exceed $50,000,000, such value shall have been determined based upon an independent valuation);
(c) so long as no Event of Default exists or would result therefrom, the Equity Interests in any Restricted Subsidiary may merge with be sold, transferred or otherwise disposed of to the Parent or any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary so long as an Unrestricted at the time thereof and after giving effect thereto no Default shall have occurred and be continuing;
(d) any Restricted Subsidiary (other than a Borrower) may be liquidated, wound up or an Unrestricted Subsidiary dissolved so long as a Restricted Subsidiaryat the time thereof and after giving effect thereto no Default shall have occurred and be continuing; provided that if such Restricted Subsidiary is an Obligor, then the Subsidiary to which the assets of such Restricted Subsidiary are transferred upon such liquidation, winding up or dissolution shall be or become an Obligor;
(e) so long as at the time thereof and after giving effect thereto no Default shall have occurred and be continuing, the Parent or any of its Restricted Subsidiaries may sell assets (including Equity Interests issued by any of their respective Restricted Subsidiaries) for fair market value, provided that the aggregate fair market value of all assets sold pursuant to this paragraph (e) during any single fiscal year shall not exceed $300,000,000;
(f) in addition to the sales permitted under the foregoing paragraph (e), the Parent and its Restricted Subsidiaries may (i) sell the continuing property of, or surviving Person Equity Interests in, Project Entities (so long as after giving effect to such sale, the Parent shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied in pro forma compliance with the requirements of Section 6.128.09 and shall have delivered a calculation, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower form and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner detail reasonably acceptable satisfactory to the Administrative Agent, to such effect from a Financial Officer) and (ii) consummate other sales so long as the Borrower aggregate fair market value thereof in any single fiscal year shall not exceed $100,000,000;
(g) the Parent or any Restricted Subsidiary may transfer or otherwise dispose of any property that is subject to a Customer Contract to the customer under such surviving Person shall be organized under Customer Contract in connection with the laws transfer of the United States or any state thereof and (iii) the Borrower or project to such surviving person shall not be a regulated entitycustomer; and
(fh) the Borrower FWL and/or Holdco may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02be dissolved; provided that (i) 100% of the Borrower economic interests and voting power in the Equity Interests of Holdco or the Company owned by the Person to be dissolved shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable transferred to the Administrative AgentParent (in the case of a dissolution of FWL or of FWL and Holdco) or FWL (in the case of a dissolution of Holdco) in connection with such dissolution. Upon the dissolution of FWL pursuant to this Section 8.04(h), (ii) all references in the Borrower or such surviving Person Loan Documents to “FWL” shall be organized under deemed to have no effect. Upon the laws dissolution of Holdco pursuant to this Section 8.04(h), all references in the United States or any state thereof and (iii) the Borrower or such surviving person Loan Documents to “Holdco” shall not be a regulated entitydeemed to have no effect.
Appears in 1 contract
Sources: Credit Agreement (Foster Wheeler Ag)
Fundamental Changes. MergeNeither the Borrower nor any of the 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 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 the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the Borrower shall be the continuing or surviving Person and such merger does not result in the Borrower ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the surviving Person shall expressly assume the obligations District of the Borrower in a manner reasonably acceptable to the Administrative Agent, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging or amalgamating with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 the Borrower) 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 interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders 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 be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary 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 result therefrom, the Borrower may merge, amalgamate or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving entity or (ii) if the Person formed by or surviving any such merger, amalgamation 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, amalgamation or consolidation, shall have confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger, amalgamation 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 Borrower’s obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such 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 Borrower’s obligations under the 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, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; and
(e) so long as no Default exists or would result therefrom (in the case of a merger or amalgamation 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) 6.11 to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) required pursuant to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02Collateral and Guarantee Requirement;
(df) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that and
(i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (iig) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower its Subsidiaries may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityconsummate Permitted Intercompany Activities.
Appears in 1 contract
Sources: Credit Agreement (DJO Finance LLC)
Fundamental Changes. MergeNo Loan Party shall, dissolveand no Loan Party shall cause or permit any Subsidiary of the Borrower to, liquidate, merge into or consolidate with any other Person, or permit any other Person to merge into another Personor consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests of any Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate 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 may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower and into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to transaction in which the Administrative AgentBorrower is the surviving corporation, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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, Globant IT, the Parent or Globant S.A. (Spain)) may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to a Wholly Owned Subsidiary, (iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or change its legal form;
dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders (cv) so long as no Event of Default exists any merger or would result therefrom, any Restricted Subsidiary may merge with any other Person in order consolidation to effect an Investment permitted pursuant to under Section 7.026.6 or a Disposition permitted under Section 6.5, the designation and (vi) any Acquisition by a Loan Party or any Wholly Owned Subsidiary of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that Loan Party where:
(iA) the continuing or surviving Person immediately before and after giving effect to such Acquisition, no Default shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02exist;
(dB) immediately before and after giving effect to such Acquisition on a pro forma basis, as at the Borrower and its Restricted Subsidiaries may consummate end of the most recent fiscal quarter for which financial statements are delivered, the Loan Parties shall be in compliance with the Maximum Net Leverage Ratio covenant set forth in Section 6.1(b);
(C) in the case of the Acquisition of any Person, the board of directors or other applicable managing entity of such Person shall have approved such Acquisition;
(eD) if requested by the Administrative Agent, reasonably prior to such Acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens on the assets or business to be acquired;
(E) the Borrower provisions of Sections 5.9 and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.055.12 shall be satisfied; provided that and
(iF) if requested by the Borrower is a party theretoAdministrative Agent, reasonably prior to such Acquisition, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable have delivered to the Administrative AgentAgent a certificate of its Chief Financial Officer in the form of Exhibit H attached hereto certifying as to compliance with the requirements set forth in clauses (A) through (E) above; provided that, (ii) the Borrower or any such surviving merger involving a Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or that is not a Wholly Owned Subsidiary immediately prior to such surviving person merger shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to unless also permitted by Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity6.6.
Appears in 1 contract
Sources: Credit Agreement (Globant S.A.)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any of its Consolidated Subsidiaries to, liquidate, merge into or consolidate with any other Person, or permit any other Person to merge into another Personor consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) its assets as an entirety or substantially as an entirety, or all or substantially all of the Capital Stock of any of its Consolidated Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(a) any Restricted Subsidiary may merge with , if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower any Person may merge into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to transaction in which the Administrative AgentBorrower is the surviving corporation, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of Default exists or would result therefrom, any Restricted Consolidated Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall be a Restricted Consolidated Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with or into or consolidate with or transfer its assets as an entirety or substantially as an entirety to any Person, so long as (A) immediately prior to and immediately after giving effect to such merger, consolidation or transfer, the Person with or into which the Borrower shall ultimately merge or consolidate or to whom the Borrower shall ultimately transfer its assets as an entirety or substantially as an entirety is in the Utility Business; (B) the Required Lenders shall have determined (so long as such determination is exercised in good faith and after consultation with the Borrower) that the rating of the first mortgage bonds (or bonds otherwise denominated that benefit from a Subsidiary first Lien on such Person’s utility assets, or, if such Person has no first mortgage bonds, the rating of Holdings for the purpose senior unsecured long-term Indebtedness of effecting an Investment permitted pursuant to Section 7.02such Person that is not guaranteed and does not benefit from any other credit enhancement) of the surviving Person of any such merger, consolidation, acquisition or transfer of assets shall be at least BBB- or higher by S&P and Baa3 or higher by ▇▇▇▇▇’▇ (unless the requirements of this clause (B) shall have been waived by the Required Lenders); provided that the requirement of this clause (iB) shall be deemed to have been satisfied if, prior to the consummation of any such merger, consolidation or transfer, the Borrower shall have delivered written evidence from each such Rating Agency to the effect that, upon such merger, consolidation or transfer, the applicable rating of such surviving Person would be equal to or higher than the ratings specified in this clause (B); (C) in the case of any merger or consolidation or transfer of assets in which the Borrower is not the surviving corporation, the Person formed by any such consolidation or transfer of assets or into which the Borrower shall be merged or consolidated or to which such assets are transferred shall have executed an agreement in form reasonably satisfactory to the continuing or surviving Person or Administrative Agent containing an assumption by the surviving Person shall expressly assume the obligations of the Borrower due and punctual performance of each obligation, agreement, covenant and condition of each of the Loan Documents and the Mortgage Indenture to be performed or complied with by the Borrower; and (D) the Administrative Agent shall have received an opinion of counsel, in a manner form and substance reasonably acceptable satisfactory to the Administrative AgentAgent and its counsel, (ii) with respect to the Borrower or such surviving Person shall be organized under the laws due authorization, execution, delivery, validity and enforceability of the United States or assumption agreement referred to in clause (C) of this Section 6.02, of the enforceability and continuation of the Liens created pursuant to the Security Documents and such other matters as the Required Lenders may reasonably require.
(b) The Borrower will not, and will not permit any state thereof and (iii) of its Consolidated Subsidiaries to, engage to any material extent in any business other than the Borrower or such surviving person shall not be a regulated entityUtility Business.
Appears in 1 contract
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Restricted Subsidiary to, liquidate, (x) merge into or consolidate with any other Person, or permit any other Person to merge into another Personor consolidate with it, (y) sell, transfer, license, lease, enter into any sale-leaseback transactions with respect to, or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and the Restricted Subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired) or (z) liquidate 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 or any other Person may merge into or consolidate with the Borrower in a transaction in (iA) which the Borrower is the surviving corporation or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower (including a mergerany such Person, the purpose of which is to reorganize “Successor Borrower”), (1) the Successor Borrower into a new jurisdiction so long as the Borrower remains organized shall be an entity incorporated or formed under the laws of the United States or States, any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume District of Columbia, (2) the obligations Successor Borrower assumes in writing all of the Borrower Borrower’s Secured Obligations pursuant to documentation reasonably satisfactory to the Administrative Agent and satisfies the Collateral and Guarantee Requirement, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in a manner form and substance reasonably acceptable satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to a Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger, amalgamation or consolidation complies with this Agreement; provided that (x) if such Person is not a Loan Party, no Event of Default exists after giving effect to such merger or consolidation and (y) if the foregoing requirements are satisfied, a Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower or the Successor Borrower provides to the Administrative Agent all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act, reasonably requested by the Administrative Agent (or any Lender, through the Administrative Agent), with results reasonably satisfactory to the Administrative Agent;
(ii) any one Person (other than the Borrower) may merge into or more other consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary (provided that any such merger or consolidation involving a Guarantor shall not result in the transfer of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries, taken as a whole, to a Person that is not a Guarantor);
(iii) any Restricted Subsidiary may sell, transfer, license, lease or otherwise dispose of its assets to the Borrower or to another Restricted Subsidiary; provided that when any Restricted Subsidiary such disposition under this clause (iii) that is made to a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(i) any Subsidiary that is not a Loan Party may merge shall in no event be permitted if it would comprise all or consolidate with or into any other Subsidiary that is not substantially all of the assets of the Borrower and its Restricted Subsidiaries, taken as a Loan Party and whole;
(iiiv) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve if the Borrower determines in good faith that such liquidation or change its legal form;dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; and
(cv) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with effect any merger or consolidation that constitutes an Investment, sale or other Person in order to effect an Investment permitted pursuant to Section 7.02, disposition that does not involve a transfer or other disposition of all or substantially all of the designation assets of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of Borrower and its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary taken as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;whole.
(db) The Borrower and its Restricted Subsidiaries, taken as a whole, will not engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries may consummate on the Acquisition;
(e) the Borrower date of execution of this Agreement and its Restricted Subsidiaries may consummate a mergerbusinesses reasonably related, dissolutioncomplementary, liquidation ancillary or consolidationincidental thereto or that constitute reasonable extensions thereof which includes, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose avoidance of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing doubt, any vertical or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityhorizontal integration.
Appears in 1 contract
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 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of Default exists or would result therefromGuarantor, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall either be the Guarantor or such Person shall be a Restricted SubsidiaryMaterial Subsidiary and such Person (and, which together with each of if applicable, its Restricted Domestic Subsidiaries, ) shall have complied with the requirements provisions of Section 6.126.13 (without regard to the time limits otherwise set forth therein) prior to or at the time of consummation of such transaction;
(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided that if the transferor in such a transaction is a Subsidiary that is a Guarantor, then either (i) such Disposition must constitute an Investment permitted by Section 7.02(d) or (ii) the transferee must be the Borrower, another Subsidiary that is a Guarantor, or a Material Subsidiary and such Person (and, if applicable, its Domestic Subsidiaries) shall have complied with the provisions of Section 6.13 (without regard to the extent time limits otherwise set forth therein) prior to or at the purpose time of consummation of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;Disposition; and
(dc) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower enter into such mergers, consolidations, amalgamations and its Restricted Subsidiaries may similar transactions as are reasonably necessary to consummate a mergerpurchase or other acquisition permitted by, dissolutionand made in accordance with the terms of, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.02(g); provided that (i) if the Borrower is in any such transaction a party theretoGuarantor will be merged with or into any other Person, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under a Material Subsidiary and such Person (and, if applicable, its Domestic Subsidiaries) shall have complied with the laws provisions of the United States or any state thereof and Section 6.13 (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable without regard to the Administrative Agent, (iitime limits otherwise set forth therein) prior to or at the Borrower or time of consummation of such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entitytransaction.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Memc Electronic Materials 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 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 the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); 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 surviving Person shall expressly assume the obligations District of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyColumbia;
(i) any Restricted 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 Party, provided that, if any party to such merger or consolidation is a Qualified Restricted Subsidiary, a Qualified Restricted Subsidiary shall be the continuing or surviving Person and (ii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal formform 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 another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (i) the transferee must be a Loan Party or (ii) to the extent constituting an Investment or giving rise to the incurrence of Indebtedness, such Investment or Indebtedness must be permitted pursuant to Sections 7.02 (other than 7.02(f)) and 7.03, respectively;
(d) so long as no Event 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, (ii) to the extent constituting an Investment or giving rise to the incurrence of Indebtedness, such Investment and such Indebtedness must be permitted pursuant to Sections 7.02 and 7.03, respectively, or (iii) 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 or the District of 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, (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 Loan 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) in the case of a merger or consolidation of the Borrower and SCA LLC in which SCA LLC shall be the continuing or surviving corporation, the Borrower shall have no direct Subsidiaries at the time of such merger or consolidation other than SCA LLC and, after giving effect to such merger or consolidation, SCA LLC 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 (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; 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 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary 7.02 or an Unrestricted Subsidiary as a Restricted Subsidiary(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 6.126.11; (B) if the merger or consolidation involves a Qualified Restricted Subsidiary that is not a Guarantor and such Qualified Restricted Subsidiary is not the surviving Person, the surviving Person must be a Qualified Restricted Subsidiary, (iiC) to the extent such merger or consolidation constitutes an Investment or gives rise to the purpose incurrence of Indebtedness, such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary Investment or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction Indebtedness must be permitted by Section 6.16pursuant to Sections 7.02 and 7.03, respectively, and (D) if the merger or (iii) consolidation involves a Guarantor and such Guarantor is not the surviving Person, the surviving Restricted Subsidiary shall expressly assume all the obligations of such Guarantor under this Agreement and the other Loan Documents to which the Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;Administrative Agent; and
(df) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 1 contract
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary to, liquidate, merge or consolidate with any other Person, or into another Personpermit any other Person to merge or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all its assets, or all or substantially all the stock of any Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that:
(a) any Restricted Subsidiary may merge with (i) , if at the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state time thereof and does not become a regulated entity); provided that the Borrower immediately after giving effect thereto no Default shall have occurred and be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(i) any Subsidiary that is not a Loan Party may merge into the Borrower or consolidate with or into any other Subsidiary; provided, that in the case of any merger of one Subsidiary that is not into another, if either of such Subsidiaries shall be a Loan Party and Guarantor, the surviving or resulting Subsidiary must at all times after such merger be a Guarantor; (ii) any Subsidiary may sell, lease or otherwise transfer all or substantially all its assets to the Borrower or to another Subsidiary; provided, that in the case of any such transfer by one Subsidiary to another, if the transferor Subsidiary shall be a Guarantor, the transferee Subsidiary must at all times after such transfer be a Guarantor; (iii) any Person other than the Borrower) may liquidate or dissolve or change its legal form;
(c) so long as no Event of Default exists or would result therefrom, any Restricted a Subsidiary may merge with any other Person the Borrower or a Subsidiary; provided, that (A) in order to effect an Investment permitted pursuant to Section 7.02, the designation case of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) the continuing or surviving Person shall be a Restricted Subsidiary, merger to which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party theretoparty, the Borrower must be the surviving or resulting corporation, (B) in the case of a merger to which a Subsidiary is a party, the surviving or resulting Person must be a Subsidiary (and, if any such constituent Subsidiary shall have been a Guarantor, a Guarantor) and (C) in the case of any merger referred to in this clause (iii), the Borrower shall be in compliance on a pro forma basis with the continuing covenants set forth in Sections 6.08 and 6.09 as of the end of and for the most recent period of four fiscal quarters for which financial statements shall have been delivered pursuant to Section 5.01, giving effect to such merger and any related incurrence or surviving Person repayment of Indebtedness as if it had occurred at the beginning of such period; and (iv) any Subsidiary may liquidate or dissolve if the surviving Person shall expressly assume Borrower determines in good faith that such liquidation or dissolution is in the obligations best interests of the Borrower in a manner reasonably acceptable and is not materially disadvantageous to the Administrative AgentLenders.
(b) The Borrower will not, (ii) and will not permit any Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrower or such surviving Person shall be organized under and the laws Subsidiaries on the date of the United States or any state thereof execution of this Agreement and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner businesses reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityrelated thereto.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Convergys 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 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 jurisdiction so long as the Borrower remains organized under the laws of in the United States or any state thereof and does not become a regulated entityStates); provided that the such Borrower (as a newly recognized entity) shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or and (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 the Borrower) may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form if the Lead Borrower determines in good faith that such action is in the best interest of ▇▇▇▇▇▇▇▇▇’▇ Group and if not materially disadvantageous to the Lenders (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) and (iii) any Immaterial Subsidiary may liquidate or dissolve;
(c) any Restricted Subsidiary may 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 Loan Party, then (i) the transferee must be a 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 Section 7.02 (other than clause (e) of the definition of “Permitted Investments”) and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, a Borrower may merge with any other Person; provided that (i) 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 a Borrower (any such Person, the “Successor Company”), (A) the Successor 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 Company shall expressly assume all the obligations of such Borrower under this Agreement and the other Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Agent, (C) each Loan Party, unless it is the other party to such merger or consolidation, shall have confirmed that its obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor Company’s obligations under the Loan Agreements, (D) each 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 Security Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, and (E) 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 Security Document comply with this Agreement; provided further that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom (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 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by 6.11 and Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;; and
(df) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Albertsons Companies, 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 (including, in each case, pursuant to a Delaware LLC Division), 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 the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that the Borrower shall be the continuing or surviving Person and such merger does not result in the Borrower ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the surviving Person shall expressly assume the obligations District of the Borrower in a manner reasonably acceptable to the Administrative Agent, Columbia or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Person that is a Loan Party is merging with another a Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(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 the Borrower) 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 interest of the Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders 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) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge with Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the continuing or surviving Person shall transferee must be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with Guarantor or the requirements of Section 6.12, Borrower or (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.02Sections 7.02 and 7.03, respectively;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(eI) the Borrower and its Restricted Subsidiaries may consummate a mergerso long as no Event of Default exists or would immediately result therefrom, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge or consolidate with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02any 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 or the surviving Person District of 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 a manner form reasonably acceptable satisfactory to the Administrative Agent, (iiC) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under the 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 Borrower’s obligations under the 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 Borrower’s obligations under the 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 surviving Person shall be organized supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the laws of Collateral Documents; provided, further, that if the United States or any state thereof foregoing are satisfied, the Successor Borrower will succeed to, and (iii) be substituted for, the Borrower or such surviving person shall not be a regulated entity.under this Agreement; and
Appears in 1 contract
Sources: Credit Agreement (Apria, Inc.)
Fundamental Changes. MergeNo Loan Party shall, nor shall they permit any Subsidiary to, directly or indirectly, merge, dissolve, liquidate, liquidate or consolidate with or into another Person, except that:
that so long as no Default exists or would result therefrom, (a) any Restricted Subsidiary the Borrower may merge or consolidate with any of its Subsidiaries provided that the Borrower is the continuing or surviving Person, (ib) the Borrower Parent Guarantor may merge or consolidate with any of its Subsidiaries (including a merger, other than the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityBorrower); provided that the Parent Guarantor is the continuing or surviving Person, (c) any Subsidiary may merge or consolidate with any other Subsidiary; provided that such merger or consolidation shall not cause a Default or Event of Default and provided further that if a Loan Party is a party to such transaction, such Loan Party is the surviving Person (provided that if the Borrower is one of such Loan Parties, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(cPerson) and 7.03(b)(iv), respectively;
(id) any Subsidiary that is not a Loan Party or a UAP Subsidiary 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 dissolve, liquidate or dissolve or change wind up its legal form;
(c) so long as no Event of Default exists or would result therefrom, affairs at any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; time 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidationwinding up, as applicable, could not have a Material Adverse Effect. Notwithstanding the above, the purpose Parent Guarantor may, subject to the consent of which the Administrative Agent (not to be unreasonably withheld), take such action as is necessary to effect a Disposition permitted pursuant change its jurisdiction of organization to Section 7.05the State of Maryland, including by means of merger or consolidation with any wholly-owned Subsidiary of the Parent Guarantor; provided that (i) if the Borrower is a party thereto, the Borrower any such transaction shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower subject to documentation in a manner form, content and scope reasonably acceptable satisfactory to the Administrative Agent, (ii) including, without limitation, documentation necessary to join any successor entity resulting from a merger or consolidation as the Borrower or such surviving Person shall be organized under the laws of the United States or parent guarantor hereunder and any state thereof related organization documents, resolutions and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityopinions related thereto.
Appears in 1 contract
Sources: Term Loan Agreement (Retail Opportunity Investments Partnership, LP)
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, or agree to effect any asset acquisition or stock acquisition (other than the acquisition of assets in the ordinary course of business), except that, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge with (i) the Borrower (including a mergerany Borrower, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entity); provided that the such Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative AgentPerson, or (ii) any one or more other Restricted Subsidiaries; , provided that when any Restricted Subsidiary that is a Loan Party Guarantor is merging with another Restricted Subsidiary, (A) a Loan Party the Guarantor shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectivelyPerson;
(ib) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Borrower or to another Subsidiary; provided that if the transferor in such a transaction is not a Loan Party may merge Guarantor, then the transferee must either be a Borrower 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;Guarantor; and
(c) any Borrower or any Subsidiary may effect any asset acquisition or stock acquisition of a business (a “Permitted Acquisition”) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) such business is engaged in substantially the continuing or surviving Person shall be a Restricted Subsidiary, which together with each same line of its Restricted Subsidiaries, shall have complied with business as the requirements of Section 6.12Borrowers, (ii) after giving effect to such acquisition, the extent Borrowers and the purpose of such transaction is to designate Subsidiaries shall have, on a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16consolidated basis, or no less than $100,000,000 in unrestricted cash and cash equivalents and/or availability under the Aggregate Commitments, (iii) after giving effect to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;
(e) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation or consolidationacquisition, the purpose Borrowers shall be in compliance with the financial covenants contained in Sections 7.13 and 7.14 determined on a pro forma basis giving effect to such acquisition as of the most recently ended Fiscal Quarter and (iv) with respect to any acquisition, the purchase price of which is greater than $20,000,000, not less than ten days prior to effect a Disposition permitted pursuant to Section 7.05; provided that (i) if the Borrower is a party theretosuch acquisition, the Borrower Borrowers shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable have delivered to the Administrative Agent, (ii) Agent a Compliance Certificate certifying as to the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and matters set forth in clause (iii) the Borrower or such surviving person shall not be a regulated entity; and
of this clause (f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entityc).
Appears in 1 contract
Sources: Credit Agreement (Stride Rite 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, 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 so long as the Borrower remains organized under the laws of the United States or any state thereof and does not become a regulated entityjurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person Person, (y) such merger or consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States, any state thereof or the surviving Person District of Columbia and (z) 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 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 Borrower other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in a manner form reasonably acceptable satisfactory to the Administrative Agent, or DIP Agent (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be acting at the continuing or surviving Person or (B) to Direction of the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(ivRequired DIP Lenders), respectively;
(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 and Party, (ii) any Subsidiary may merge or consolidate with or into any other Subsidiary of the Borrower that is a Loan Party, (other than iii) any merger the Borrowersole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Subsidiary may liquidate or dissolve or change its legal formform if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders, provided, in the case of clauses (ii) through (iv), 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 Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (i) the transferee must be a Loan Party or (ii) such Investment must be a permitted Investment in a Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e));
(d) [reserved];
(e) [reserved];
(f) so long as no Event of 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, the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary7.02 (other than Section 7.02(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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.026.11;
(dg) the Borrower and its Restricted Subsidiaries may consummate the Acquisition;[reserved]; and
(eh) the Borrower and its Restricted Subsidiaries may consummate so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; provided that 7.05 (i) if the Borrower is a party thereto, the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to other than Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity7.05(e)).
Appears in 1 contract
Sources: Senior Secured Super Priority Debtor in Possession Credit Agreement (JOANN Inc.)
Fundamental Changes. Merge, dissolve, liquidate, The Parent Borrower may not consolidate or merge with or into another Personor wind up into (whether or not the Parent Borrower is the surviving corporation), except that:
and may not sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the Parent Borrower and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless: the Parent Borrower is the surviving corporation or the Person formed by or surviving any such consolidation or merger (aif other than the Parent Borrower) any Restricted Subsidiary may merge with (i) or the Borrower (including a mergerPerson to whom such sale, the purpose of which assignment, transfer, lease, conveyance or other disposition will have been made is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized or existing under the laws of the United States States, any state thereof, the District of Columbia, or any state territory thereof and does not become a regulated entity(such Person, the “Successor Company”); provided that the Borrower shall be Successor Company, if other than the continuing or surviving Person or Parent Borrower, expressly assumes all the surviving Person shall expressly assume the obligations Obligations of the Parent Borrower in a manner pursuant to documentation reasonably acceptable satisfactory to the Administrative Agent; immediately after such transaction, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person or (B) to the extent constituting an Investment, such Investment must be an Investment in or Indebtedness permitted by Sections 7.02(c) and 7.03(b)(iv), respectively;
(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;
(c) so long as no Event of Default exists or exists; immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period, the Successor Company would result therefrom, any Restricted Subsidiary may merge with any other Person in order be permitted to effect an Investment permitted incur at least $1.00 of additional Indebtedness pursuant to the Total Net Leverage Test described in Section 7.02, 6.01(a); or the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) Total Net Leverage Ratio for 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 6.12, (ii) to the extent the purpose of such transaction is to designate a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary such transaction must be permitted by Section 6.16, or (iii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02;
(d) the Parent Borrower and its Restricted Subsidiaries would be equal to or less than the each ratio immediately prior to such transaction; and in each case made or effected substantially simultaneously with such transaction or related financing; each Guarantor, unless it is the other party to the transactions described above, in which case Section 6.04(c)(i)(B) shall apply, shall have confirmed that its Obligations under the Loan Documents to which it is a party pursuant to documentation reasonably satisfactory to the Administrative Agent; and the Parent Borrower shall have delivered to the Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such documentation relating to the Loan Documents, if any, comply with this Agreement; provided that the Parent Borrower shall promptly notify the Administrative Agent of any such transaction and shall take all required actions either prior to or upon the later to occur of 30 days following such transaction (or the earlier of the date of the required delivery of the next Pricing Certificate and the date which is 45 days after the end of the most recently ended fiscal quarter (or such longer period as to which the Administrative Agent may consummate consent) in order to preserve and protect the Acquisition;
Liens on the Collateral securing the Secured Obligations. The Successor Company will succeed to, and be substituted for the Parent Borrower under the Loan Documents. Notwithstanding the foregoing, clause (eiv) shall not apply to the Transactions (including the Merger). Notwithstanding the foregoing paragraphs (a)(iii) and (a)(iv), the Parent Borrower or a Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Parent Borrower or a Restricted Guarantor; the Parent Borrower may merge with an Affiliate of the Parent Borrower solely for the purpose of reorganizing the Parent Borrower in a State of the United States so long as the amount of Indebtedness of the Parent Borrower and its Restricted Subsidiaries is not increased thereby; any Foreign Subsidiary may consummate a merger, dissolution, liquidation consolidate with or consolidation, the purpose merge into or transfer all or part of which is its properties and assets to effect a Disposition permitted pursuant to Section 7.05any other Foreign Subsidiary; provided that (i) if the Borrower Foreign Subsidiary so consolidating, merging or transferring all or part of its properties and assets is a party theretoForeign Subsidiary Borrower, such Foreign Subsidiary Borrower shall, substantially simultaneously with such merger, transfer or disposition, repay in full all its Obligations and terminate its rights to borrow hereunder; the Foreign Subsidiary Reorganization may be effected; CDRV Holdings, Inc. may consolidate or merge with or into or wind up into CDRV Investment Holdings Corporation; and CDRV Investment Holdings Corporation may consolidate or merge with or into or wind up into the Parent Borrower. No Restricted Guarantor will, and the Parent Borrower shall be will not permit any Restricted Guarantor to, consolidate or merge with or into or wind up into (whether or not the continuing Parent Borrower or surviving Person or Restricted Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity; and
(f) the Borrower may merge with a Subsidiary of Holdings for the purpose of effecting an Investment permitted pursuant to Section 7.02; provided that (i) the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (ii) the Borrower or such surviving Person shall be organized under the laws of the United States or any state thereof and (iii) the Borrower or such surviving person shall not be a regulated entity.unless:
Appears in 1 contract
Sources: Credit Agreement (VWR Funding, Inc.)