Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that: (a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia; (i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom; (c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; (d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement; (e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and (f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 5 contracts
Sources: Fifth Amended and Restated Credit Agreement (Iqvia Holdings Inc.), Credit Agreement (Iqvia Holdings Inc.), Credit Agreement (Iqvia Holdings Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent 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, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize not a Loan Party in another jurisdiction in the United States shall be permitted and (ivii) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or (ii) to Foreign Loan Party, as the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investmentcase may be;
(d) (i) so long as no Event of Default has occurred and is continuing exists or would result therefromtherefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, any the Parent Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Parent 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of such the Parent Borrower under this Agreement and the other Credit Loan Documents to which such the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, and (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement 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 Parent Borrower will succeed to, and be substituted for, such the Parent Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 5 contracts
Sources: Credit Agreement (Clear Channel Communications Inc), Credit Agreement (Clear Channel Communications Inc), Credit Agreement (Clear Channel Communications Inc)
Fundamental Changes. Merge, dissolve, liquidate, (a) No Consolidated Entity will merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of related transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)dissolve, except that:
(a) any Restricted Subsidiary of , if at the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower time thereof and immediately after giving effect thereto no Default shall have occurred and be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or merge into any other Restricted Subsidiary of the Parent Borrower that in a transaction in which the Parent Borrower is a Non-Loan Partythe surviving corporation, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Wholly-Owned Subsidiary of in a transaction in which the Parent Borrower that surviving entity is a Wholly-Owned Subsidiary and, if any party to such merger is a Loan Party, is or becomes a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and Borrower, is not materially disadvantageous to the Lenders; providedLenders and could not reasonably be expected to have a Material Adverse Effect, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction Subsidiary 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 Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefromGuarantor, any Borrower may merge assets or consolidate business not otherwise disposed of or transferred in accordance with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent BorrowerSection 6.06, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borroweror, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrowerbusiness, each Swiss Guarantor, unless it is the other party to such merger or consolidationdiscontinued, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed be transferred to, and be substituted foror otherwise owned or conducted by, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted SubsidiaryGuarantor after giving effect to such liquidation or dissolution; provided further that no Subsidiary Borrower may be liquidated or dissolved if any Borrowing or Revolving Credit Exposure attributable to such entity is outstanding at such time, (iv) any Foreign Subsidiary may merge into any other Foreign Subsidiary that is a Wholly-Owned Subsidiary in a transaction in which together with each of its Restricted Subsidiariesa Foreign Subsidiary that is a Wholly-Owned Subsidiary is the surviving corporation, shall have complied with the applicable requirements of (v) any Wholly-Owned Subsidiary may merge into any Person in order to consummate a Permitted Acquisition permitted by Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f6.04(e) so long as no Event after giving effect thereto the Person surviving such merger is a Subsidiary and (vi) any Consolidated Entity may effect the closure of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is division in such Consolidated Entity.
(b) No Consolidated Entity will engage to effect a Disposition permitted pursuant to Section 7.05 (any material extent in any business other than Section 7.05(e))businesses of the type conducted by the Consolidated Entities on the date of execution of this Agreement and businesses reasonably related thereto.
Appears in 4 contracts
Sources: Credit Agreement (Charles River Laboratories International Inc), Credit Agreement (Charles River Laboratories International Inc), Credit Agreement (Charles River Laboratories International Inc)
Fundamental Changes. Merge(a) The Borrower will not, and will not permit any Subsidiary Loan Party to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, liquidateexcept that, consolidate with or if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) the Borrower may merge into a wholly owned Subsidiary of the Borrower for the sole purpose of effecting a change in the jurisdiction of organization of the Borrower, provided that (A) such Subsidiary is not a Foreign Subsidiary, (B) such Subsidiary is a corporation organized for the sole purpose of effecting a change in the jurisdiction of organization of the Borrower and, prior to the consummation of such merger, owns no Equity Interests in any entity, (C) after giving effect to such merger, such Subsidiary shall be the surviving entity and, for purposes of this Agreement and the other Loan Documents, shall be deemed to be the "Borrower" and shall succeed to the rights and obligations of the Borrower under this Agreement and the other Loan Documents, and such Subsidiary shall enter into an instrument in form and substance reasonably satisfactory to the Administrative Agent stating that it has become the "Borrower" and has succeeded to the rights and obligations of the Borrower under this Agreement and the other Loan Documents, (D) immediately after giving effect to such merger, each Person that was a shareholder of the Borrower prior to the consummation of such merger shall become a shareholder of such Subsidiary, and each such Person shall own Equity Interests in the reorganized Borrower having an aggregate voting power equal to those Equity Interests in the Borrower held by such Person prior to such merger, (E) the Administrative Agent shall have received notice of such merger 30 days prior to the consummation of such merger, (F) prior to the consummation of such merger, the Borrower shall have taken all actions necessary pursuant to Section 5.13 to cause the Collateral and Guarantee Requirement to be and remain satisfied after giving effect to the merger and (G) the Borrower and such Subsidiary shall deliver all legal opinions relating to the matters set forth in the preceding clauses (A) through (F) as may be reasonably requested by the Administrative Agent, (iii) any Subsidiary Loan Party may merge into any Subsidiary Loan Party in a transaction in which the surviving entity is a Subsidiary Loan Party, (iv) the Borrower may permit another Person to merge into it in order to effect a Permitted Acquisition in which the Borrower is the surviving entity, (v) a Subsidiary Loan Party may merge into another Person, or Dispose of may permit another Person to merge into it, in order to effect a Permitted Acquisition in which the surviving entity is a Subsidiary Loan Party and (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 Transactions), except that:
(avi) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a BorrowerLicense Subsidiary) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in any such merger involving a transaction Person that is not a Loan Party, then (i) the transferee must wholly owned Subsidiary immediately prior to such merger shall not be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted unless also permitted by Section 7.06 6.04.
(b) The Borrower will not, and will not permit any of the Subsidiary Loan Parties to, engage to any material extent in any business other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each businesses of the Successor Parent type conducted by the Borrower and the Successor Subsidiary Borrowers, Loan Parties on the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 Effective Date and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))related thereto.
Appears in 4 contracts
Sources: Amendment and Restatement Agreement (Cumulus Media Inc), Amendment and Restatement Agreement (Cumulus Media Inc), Credit Agreement (Cumulus Media Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) any Restricted Subsidiary of the Prior to a Trigger Event, (i) Parent Borrower may merge, amalgamate or consolidate merge with the Parent Borrower Holdings (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided it being understood that (x) the Parent Borrower shall either entity may be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party), (ii) any Restricted Subsidiary (other than a Borrower) Parent may merge with Topco (it being understood that either entity may be the continuing or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Partysurviving Person), (iii) any merger Topco may merge with Holdings (it being understood that either entity may be the sole purpose of which is to reincorporate continuing or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and surviving Person), (iv) any Restricted of Parent, Topco or Holdings may merge with any newly formed Subsidiary Guarantor that is a direct or indirect parent of the Lead Borrower and (other than a Borrowerv) Parent, Topco or Holdings may liquidate or dissolve dissolve; provided that, in each case, (x) after giving effect to any such transaction, at least one of Parent, Topco, Holdings or change such newly formed Subsidiary Guarantor shall remain as an immediate parent of the Lead Borrower, (y) all of the Equity Interests of the LifeCell Group then held by Parent and its legal form if Subsidiaries shall be held directly or indirectly by Parent, Topco, Holdings or such newly formed Subsidiary Guarantor and (z) the Parent Borrower Company determines in good faith that such action is in the best interests of the Parent Borrower Company and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(cb) any Restricted Subsidiary may merge with (i) the Lead Borrower (including a merger the purpose of which is to reorganize the Borrower in a new State within the United States); provided that (x) the Lead Borrower shall be the continuing or surviving Person, (y) after giving effect to any such transaction, at least one of Parent, Topco or Holdings shall remain as an immediate parent of the Lead Borrower and (z) all of the Equity Interests of the LifeCell Group then held by Parent and its Subsidiaries shall be held directly or indirectly by Parent, Topco, Holdings or any Subsidiary Guarantor formed in accordance with Section 7.04(a) that is a direct or indirect parent of the Lead Borrower, 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 Loan Party shall be the continuing or surviving Person;
(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, (ii) (A) any Subsidiary (other than a BorrowerHoldings or Topco) may liquidate or dissolve, or (B) any Restricted Subsidiary may change its legal form, in each case, if in either case, the Company determines in good faith that such action is in the best interests of the Company and its Subsidiaries and is not materially disadvantageous to the Lenders and (iii) the Company may change its legal form if it determines in good faith that such action is in the best interests of the Company and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(d) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) Investment in or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case Indebtedness of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Restricted Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation which is not the Parent Borrower (any such Persona Loan Party in accordance with Section 7.02 and Section 7.03, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreementrespectively;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom therefrom, the Lead Borrower may merge with any other Person; provided that the Lead Borrower shall be the continuing or surviving corporation;
(in the case of a merger, amalgamation f) so long as no Default exists or consolidation involving a Loan Party)would result therefrom, any Restricted Subsidiary may merge, amalgamate or consolidate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment7.02; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to 6.11;
(g) the extent required under Acquisition and the Collateral and Guarantee RequirementLifeCell Restructuring may be consummated; and
(fh) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))7.05, may be effected.
Appears in 4 contracts
Sources: Credit Agreement (Acelity L.P. Inc.), Credit Agreement (Acelity L.P. Inc.), Credit Agreement (Kinetic Concepts Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) The Borrower will not, and will not permit any Restricted Subsidiary of the Parent Borrower may mergeto, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower merge into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that , or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except 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) any Person may merge into or consolidate with the Borrower in a transaction in which (x) the case Borrower is the surviving entity or (y) the other party is the surviving entity of a such merger or consolidation involving the Parent Borrower(in such event, the Parent Borrower such surviving entity shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ) so long as (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity is organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all assumes the Borrower’s obligations of such Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto thereto, as applicable, in form and substance reasonably satisfactory to the Administrative Agent, Agent and (C) in the case of any such transaction involving Swiss each Subsidiary Borrower, each Swiss GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty Collateral Agreement and, if reasonably requested by the Administrative Agent, each other Security Document to which such Subsidiary Loan Party is a party confirmed that its guarantee of the Swiss Obligations obligations thereunder shall apply to the Successor Borrower’s obligations under this AgreementAgreement (it being understood that, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing conditions in clauses (A) through (C) are satisfied, then the Successor Borrower will automatically succeed to, and be substituted for, such the Borrower under this Agreement;
), (eii) so long as no Event any Person (other than the Borrower) may merge into or consolidate 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 is a Subsidiary Loan Party, the surviving entity is or becomes a Subsidiary Loan Party, (iii) any Restricted Subsidiary may merge into or consolidate with any Person (other than the Borrower) in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Restricted Subsidiary, and (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution or change in legal form is in the best interests of Default has occurred the Borrower and is continuing or would result therefrom (in not materially disadvantageous to the case of a merger, amalgamation Lenders; provided that any such merger or consolidation involving a Loan Party)Person that is not a wholly-owned Restricted Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any Restricted Subsidiary may mergeto, amalgamate or consolidate with engage to any other Person material extent in order to effect an Investment permitted pursuant to Section 7.06 (any business other than Section 7.06(b)(xix)) businesses of the type conducted by the Borrower and the Restricted Subsidiaries on the Effective Date and businesses reasonably related, complementary or ancillary thereto or a Permitted Investment; provided that reasonable extension or expansion thereof as determined by the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))in good faith.
Appears in 4 contracts
Sources: Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize not a Loan Party in another jurisdiction in the United States shall be permitted and (ivii) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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 InvestmentInvestment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or Subsidiary which is not a Permitted InvestmentLoan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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 or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such 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, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.06 7.02 or (ii) for any other than Section 7.06(b)(xix)) or a Permitted Investmentpurpose; provided that (A) the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.11; and (B) in the case of subclause (ii) only, if (1) the merger or 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 required under Administrative Agent and (2) the Collateral and Guarantee RequirementSecured Leverage Ratio for the Test Period immediately preceding such merger or consolidation calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10 is less than or equal to 4.5 to 1.0;
(f) the Merger may be consummated; and
(fg) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))7.05.
Appears in 4 contracts
Sources: Credit Agreement (Avaya Inc), Credit Agreement (Avaya Inc), Credit Agreement (Avaya Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, or Dispose of (whether in one transaction or in effect 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 Transactions)Division, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that:
(xi) the Parent Borrower shall be the continuing or surviving Person, and ;
(yii) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the 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) 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 (C) 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 form reasonably satisfactory to the Administrative Agent;
(ib) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, or liquidate or dissolve;
(iiic) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party Restricted Subsidiary in another jurisdiction in the United States shall be permitted and permitted;
(ivd) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lendersform; provided, in the case of clauses provided (iii) and (iii), no Event of Default would shall result therefromtherefrom and (ii) the surviving Person (or the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be a Restricted Subsidiary;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(de) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that that:
(i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or corporation; or
(ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ;
(A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, Columbia;
(B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, ;
(C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and ;
(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) if requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement; and
(F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement, and, with respect to such opinion of counsel only, including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; provided, further, it being agreed that if the foregoing are satisfied, the Successor Borrower ▇▇▇▇▇▇▇▇ will succeed to, and be substituted for, such the Borrower under this Agreement;
(ef) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person in order to effect an Investment Investment, Acquisition Transaction or other transaction not prohibited by the Loan Documents;
(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, then each surviving or resulting Person shall constitute a “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 7.11(b)(ii), 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 7.06 7.05 (other than Section 7.06(b)(xix7.05(e)) or otherwise would constitute an Excluded Subsidiary; provided, further that such surviving or resulting Person not becoming a Permitted Investment; provided that 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 the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of permitted under this Section 6.11 7.04(h)(iii) solely to the extent required permitted under the Collateral and Guarantee Requirement; andSection 7.02;
(fh) so as long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 3 contracts
Sources: First Lien Credit Agreement (Mister Car Wash, Inc.), First Lien Credit Agreement (Mister Car Wash, Inc.), First Lien Credit Agreement (Mister Car Wash, Inc.)
Fundamental Changes. Merge(a) Neither Holdings nor the Borrower shall, dissolve, liquidatenor shall they permit any Restricted Subsidiary to, consolidate or merge with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to consolidate or in a series of related transactions) all merge with or substantially all of its assets (whether now owned into it, or hereafter acquired) to liquidate or in favor of any Person (other than as part of the Transactions)dissolve, except that:
(a) any Restricted Subsidiary , if at the time thereof and immediately after giving effect thereto no Event of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower Default shall have occurred and be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;continuing,
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) Person may merge, amalgamate merge into or consolidate with Holdings or into any other Restricted Subsidiary of with the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction in which Holdings or the Borrower is a Loan Party, then the surviving entity or the surviving entity (ithe “Successor Entity”) (A) is organized under the transferee must be a Loan Party or laws of (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i1) in the case of a merger or consolidation involving the Parent Borrowerwith Holdings, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower United States, any State thereof or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or District of Columbia and (ii2) in the case of a merger involving of consolidation with the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandNetherlands, (B) expressly assumes Holdings’s or the Successor Borrower shall expressly assume all the Borrower’s, as applicable, obligations of such Borrower under this Agreement and the other Credit Loan Documents to which such Borrower Loan Party is a party pursuant to a supplement hereto or thereto thereto, as applicable, in form and substance reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss each Subsidiary Borrower, each Swiss GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty Collateral Agreement and, if reasonably requested by the Administrative Agent, each other Security Document to which such Subsidiary Loan Party is a party confirmed that its guarantee of the Swiss Obligations obligations thereunder shall apply to the Successor BorrowerEntity’s obligations under this Agreement, Agreement and (D) each mortgagor of a Mortgaged Property, unless it is the other party to such Borrower merger of consolidation, shall have delivered by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Administrative Agent an officerSuccessor Entity’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to obligations under this Agreement or any Collateral Document comply with this Agreement; provided(it being understood that, further, that if the foregoing conditions in clauses (A) through (D) are satisfied, then the Successor Borrower Entity will automatically succeed to, and be substituted for, such Borrower Holdings or the Borrower, as applicable, under this Agreement;),
(eii) so long as no Event any Person (other than Holdings or the Borrower) may merge into or consolidate 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 is a Subsidiary Guarantor, is a Subsidiary Guarantor,
(iii) any Restricted Subsidiary may merge into or consolidate with any Person (other than the Borrower) in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Restricted Subsidiary,
(iv) any Restricted Subsidiary may liquidate or dissolve (A) if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of Default has occurred the Borrower and is continuing not materially disadvantageous to the Lenders and (B) if such Restricted Subsidiary is a Subsidiary Loan Party, if any assets or would result therefrom (business of such Restricted Subsidiary not otherwise disposed of or transferred in accordance with this Section 6.03 or Section 6.05 or in the case of a mergerany such business, amalgamation discontinued, shall be transferred to, or otherwise owned or conducted by, another Subsidiary Loan Party, after giving effect to such liquidation or dissolution; provided that any such merger or consolidation involving a Loan Party)Person that is not a wholly owned Restricted Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04 and
(v) Holdings, the Borrower and the Restricted Subsidiaries may consummate the transactions comprising the Spin-Off in accordance with the Effective Date Spin-Off Documents.
(b) The Borrower shall not, and Holdings and the Borrower shall not permit any Restricted Subsidiary may mergeto, amalgamate or consolidate with engage to any other Person material extent in order to effect an Investment permitted pursuant to Section 7.06 (any business other than Section 7.06(b)(xix)) businesses of the type conducted by the Borrower and the Restricted Subsidiaries as described in the Effective Date Form 10 and businesses reasonably incidental, complementary or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))related thereto.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Alcoa Corp), Revolving Credit Agreement (Alcoa Upstream Corp), Revolving Credit Agreement (Alcoa Inc.)
Fundamental Changes. Merge(a) The Parent Borrower will not, dissolveand will not permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of related transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)dissolve, except that:
(a) any Restricted Subsidiary of , if at the Parent Borrower may mergetime thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or merge into any other Restricted Subsidiary of the Parent Borrower that in a transaction in which the Parent Borrower is a Non-Loan Partythe surviving corporation, (ii) any Restricted Subsidiary (other than including a BorrowerGuarantor) may merge or consolidate with or into any other Restricted Subsidiary in a transaction in which the surviving entity is a Subsidiary (provided that, in the case of the Parent Borrower a merger of a Subsidiary that is not a Loan PartySubsidiary Borrower into a Subsidiary Borrower in which the surviving Subsidiary is not the Subsidiary Borrower, the surviving Subsidiary shall execute and deliver to the Administrative Agent an assumption agreement expressly assuming the Subsidiary Obligations of such Subsidiary Borrower under this Agreement), and (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) Lenders and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to except that the Parent 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, such Investment must be a Restricted Payment any Subsidiary may effect any acquisition permitted by Section 7.06 6.05 by means of a merger of the Person that is the subject of such acquisition with the Parent Borrower or any of its Subsidiaries (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefromprovided that, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving with the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Partysurvivor), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(fb) The Parent Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than a Related Line of Business; provided, that the Parent Borrower and any Subsidiary may engage in any business or businesses which are not Related Lines of Business, so long as no Event of Default has occurred and is continuing or would result therefromthe Investments made by the Parent Borrower and/or the Subsidiaries in such businesses do not exceed $500,000,000 in the aggregate, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, which amount shall be included in the purpose of which is to effect a Disposition aggregate amount for Investments permitted pursuant to under Section 7.05 (other than Section 7.05(e)6.05(j).
Appears in 3 contracts
Sources: Credit Agreement (Ralph Lauren Corp), Credit Agreement (Ralph Lauren Corp), Credit Agreement (Polo Ralph Lauren Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent 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, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize not a Loan Party in another jurisdiction in the United States shall be permitted and (ivii) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted InvestmentParty;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any ,
(i) the Parent Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Parent 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of such the Parent Borrower under this Agreement and the other Credit Loan Documents to which such the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss Obligations shall apply to the Successor Parent 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 each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, and (DE) such 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 Parent Borrower will succeed to, and be substituted for, such the Parent Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 3 contracts
Sources: Credit Agreement (Clear Channel Communications Inc), Credit Agreement (CC Media Holdings Inc), Credit Agreement (C C Media Holdings Inc)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into or wind up or convert 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 Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, consolidate or amalgamate with or consolidate with into, or convert or wind up into the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger merger, consolidation, amalgamation, conversion or consolidation winding up does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia, and (z) in the case of a merger, consolidation or amalgamation of Holdings with and into or converting or winding up 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, consolidation, amalgamation, conversion or winding up other than the Borrower and, after giving effect to such merger, consolidation, amalgamation, conversion or winding up, 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;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, consolidate or amalgamate or consolidate with or into or convert or wind up into any other Restricted Subsidiary of the Parent Borrower that is not a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge merge, consolidate or consolidate amalgamate with or into or convert or wind up into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger merger, consolidation, amalgamation, conversion or winding up the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate wind up, liquidate, convert or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and through (iiiiv) of this paragraph (b), that (A) no Event of Default would shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a permitted Investment in a Restricted Payment permitted by Subsidiary which is not a Loan Party in accordance with Section 7.06 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 7.06(b)(xix)) or a Permitted Investment9.5;
(d) so long as no Event of Default has occurred and is continuing or would result therefromexist immediately after giving effect thereto, any the Borrower may merge merge, consolidate or consolidate amalgamate with or into, or convert into, any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger merger, consolidation, amalgamation or consolidation conversion is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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, consolidation or amalgamation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, consolidation or amalgamation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, consolidation, amalgamation or consolidation conversion 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, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)exist immediately after giving effect thereto, any Restricted Subsidiary may merge, consolidate, amalgamate with or consolidate with into, or convert or wind up into any other Person in order to effect an Investment permitted pursuant to Section 7.06 9.2 (other than Section 7.06(b)(xix9.2(e)) or a Permitted Investment); provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its the Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to Sections 8.11, 8.12 and 8.13;
(f) the extent required under the Collateral and Guarantee RequirementTransaction may be consummated; and
(fg) so long as no Event of Default has occurred and is continuing or would result therefromexist immediately after giving effect thereto, a merger, dissolution, liquidation, consolidation, amalgamation, dissolutionconversion, liquidation, consolidation winding up or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 9.5 (other than Section 7.05(e9.5(e)).
Appears in 3 contracts
Sources: Abl Credit Agreement (99 Cents Only Stores LLC), Abl Credit Agreement (99 Cents Only Stores LLC), Credit Agreement (99 Cents Only Stores)
Fundamental Changes. MergeThe Parent and the Borrower will not, dissolveand will not permit any other Loan Party to, liquidate, either (x) merge into or consolidate with or into another any other Person, or Dispose of permit any other Person to merge into or consolidate with it, or (whether in one transaction y) liquidate 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 Transactions)dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(a) any Restricted Subsidiary of may merge with or into the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a mergerParent, the purpose of Borrower or any other Loan Party in a transaction in which the Parent, the Borrower or such Loan Party, as the case may be, is to reorganize the Parent Borrower into a new jurisdiction)surviving entity; provided that (xi) the Parent and the Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does will not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate merge with or into each other and (ii) if the Parent or the Borrower merges with any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, the Parent or the Borrower, as the case may be, must be the surviving entity; and
(iib) any Restricted Subsidiary (other than a Borrower) Person may merge or consolidate with or into the Parent, the Borrower or any other Restricted Subsidiary of Loan Party in a transaction in which the Parent Parent, the Borrower that is a or such Loan Party, (iii) any merger as the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) case may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and be, is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Personsurviving entity; provided that (ii)(A) in the case of a merger Person merging or consolidation involving consolidating with or into the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation shall be a corporation organized or existing under the laws of the jurisdiction in which the Borrower is not the Parent Borrower organized and (any such Person, the “Successor Parent Borrower”B) or in the case of a merger involving Person merging or consolidating with or into the Japanese Subsidiary Borrower Parent or any other Loan Party other than the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity a corporation organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof and or, in the case of a merger or consolidation involving the Japanese Subsidiary Borrower or the Swiss Subsidiary BorrowerParent, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and jurisdiction in which the Parent is organized (y) in such Person being herein referred to as the case of the Swiss Subsidiary Borrower, Switzerland“Successor Entity”), (Bii) the Successor Borrower Entity shall expressly assume all the obligations of such the Parent, the Borrower or the applicable Loan Party, as the case may be, under this Agreement and the other Credit Loan Documents to which the Parent, the Borrower or such Borrower Loan Party, as applicable, is a party party, pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (Ciii) in if such merger or consolidation involves the case of any such transaction involving Swiss Subsidiary Borrower, then each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have (by a supplement to the Swiss Guaranty Agreement) confirmed that its guarantee of the Swiss Obligations Guarantee shall apply to all of the Successor BorrowerEntity’s obligations under this Agreement, and (Div) such Borrower if requested by the Administrative Agent, the Administrative Agent shall have delivered received an opinion of counsel reasonably satisfactory to the Administrative Agent an officer’s certificate to the effect that the applicable Loan Documents are legal, valid, binding and an opinion enforceable obligations of counsel, each stating that the Successor Entity and (v) this clause (b) shall not be construed to permit the Borrower to merge with or into the Parent. In the case of any such merger of the Parent or consolidation and such supplement to this Agreement or any Collateral Document comply the Borrower in accordance with this Agreement; provided, further, that if the foregoing are satisfiedclause (b) above, the Successor Borrower Entity shall be deemed to be the Parent or the Borrower, as applicable, for all purposes of the Loan Documents. Notwithstanding anything to the contrary herein, the Parent will succeed tonot engage, and be substituted forwill not permit the Borrower to engage, in any transaction that would reduce the percentage of Equity Interests owned by the Parent in the Borrower, except for (x) sales, transfers and other disposals of such Equity Interests to directors, officers or employees of the Borrower under this Agreement;
pursuant to any employee stock ownership plan or similar plan for the benefit of directors, officers or employees of the Borrower and (ey) so long the issuance of such Equity Interests as consideration for any acquisition from a third party; provided that following any such issuance of Equity Interests to a third party, no Event of Default has Change in Control shall have occurred and is continuing or would result therefrom (in the case majority of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 the seats (other than Section 7.06(b)(xix)vacant seats) or a Permitted Investment; provided that on the continuing or surviving Person board of directors of the Borrower shall be occupied by Persons nominated by the board of directors of the Borrower or the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) appointed by directors so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))nominated.
Appears in 3 contracts
Sources: Term Loan Agreement (Willis Group Holdings PLC), Credit Agreement (Willis Group Holdings PLC), Credit Agreement and Guaranty Agreement (Willis Group Holdings PLC)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia 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 Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, that (x) in the case of clauses (ii) and through (iiiiv) of this paragraph (b), (A) no Event of Default would shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party and (y) in the case of clause (iii) of this paragraph (b), the Borrower shall provide not less than ten (10) days’ prior written notice to the Administrative Agent of such proposed change;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a permitted Investment in a Restricted Payment permitted by Subsidiary which is not a Loan Party in accordance with Section 7.06 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 7.06(b)(xix)) or a Permitted Investment9.5;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandColumbia, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (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) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (F) the Administrative Agent shall have made such filings and received such documents and agreements as may be reasonably required by the Administrative Agent to continue the perfection of its Liens on the Collateral in accordance with the Loan Documents and (G) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement and providing for other customary opinions reasonably requested by the Administrative Agent; 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, Holdings may merge or consolidate with any other Person; provided that (A) Holdings shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”)
(A) the Successor Holdings 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 Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) 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 Holdings will succeed to, and be substituted for, such Borrower Holdings under this Agreement;
(ef) so long as no Event of Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 9.2 (other than Section 7.06(b)(xix9.2(e)) or a Permitted Investment); provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral Sections 8.11, 8.12 and Guarantee Requirement8.13;
(g) [reserved]; and
(fh) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 9.5 (other than Section 7.05(e9.5(e)).
Appears in 3 contracts
Sources: Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that, so long as no Default exists or Dispose of would result therefrom, (whether in one transaction i) any Person may merge with or into, consolidate with or amalgamate with the Borrower in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or transaction in favor of any Person (other than as part of which the Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Person (other than Parent Guarantor) may merge with or into, consolidate with or amalgamate with any Subsidiary (other than a the Borrower) may merge in a transaction in which the continuing or consolidate with or into any other Restricted surviving Person shall be a Subsidiary of the Parent Borrower that is a Loan PartyBorrower, (iii) any merger Subsidiary of the sole purpose of which is Borrower may merge with or into, consolidate with or amalgamate with any Person in order to reincorporate consummate a Disposition permitted by Section 7.05 or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and an Investment; (iv) any Restricted Subsidiary of the Borrower may merge into, the Parent Guarantor, the Borrower or any other Subsidiary of the Borrower; and (other than a Borrowerv) any Subsidiary of the Borrower may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided. For the avoidance of doubt, in the case of clauses connection with an internal restructuring, (iix) and (iii)DOC OP may merge, no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of consolidate or amalgamate with or into, or distribute or transfer all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Partyto, then (i) the transferee must be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower DOC or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) DOC may merge, consolidate or amalgamate with or into, or distribute or transfer all or substantially all its assets to, the Borrower, it being understood and agreed that, in the case of event the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall successor or transferee entity in any such transaction expressly assume all assumes the obligations of DOC OP under any DOC Debt, such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory assumption shall be permitted notwithstanding anything to the Administrative Agent, (C) contrary in the case this Article VII and shall not constitute a new incurrence of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Indebtedness for purposes of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this AgreementSection 7.03; provided, further, that if the foregoing are satisfiedprovided that, the Successor Borrower will succeed to, and be substituted for, Loan Parties shall provide such Borrower under this Agreement;
(e) so long customary “know your customer” documentation as no Event of Default has occurred and is continuing or would result therefrom (the Lenders may reasonably require in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate connection with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))such transfer.
Appears in 3 contracts
Sources: Credit Agreement (Healthpeak Properties, Inc.), Term Loan Agreement (Healthpeak Properties, Inc.), Credit Agreement (Healthpeak Properties, Inc.)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or 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 Transactions), except that:
(a1) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, and ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;, and
(c) in the case of a merger or consolidation of Holdings with and into the Borrower,
(i) Holdings shall not be an obligor in respect of any Restricted Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower,
(iii) no Event of Default exists at such time or after giving effect to such transaction, and
(iv) after giving effect to such transaction, a direct parent of the Borrower will (A) 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 (acting at the Direction of the Required Lenders) and the Borrower and (B) pledge 100% of the Equity Interests of the Borrower held by such direct parent to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent (acting at the Direction of the Required Lenders) and the Borrower;
(a) any Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party,
(b) 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;
(iiic) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall will be permitted and permitted; and
(ivd) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted the Subsidiaries and is not materially disadvantageous to the Lenders; provided, provided that in the case of clauses clause (ii) and (iiid), no Event the Person who receives the assets of Default would result therefromsuch dissolving or liquidated Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or the definition of “Permitted Investments”;
(c3) any Restricted Subsidiary (other than a Borrower) may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d4) so long as no Event of Default has occurred and is continuing or would result therefrom, any the Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (iib) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ):
(i) the Successor Borrower will:
(A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, Columbia,
(B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent (acting at the Direction of the Required Lenders) and the Borrower and
(C) in deliver to the case Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (II) an Opinion of any Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent (acting at the Direction of the Required Lenders);
(ii) substantially contemporaneously with such transaction involving Swiss Subsidiary Borrower, (or at a later date as agreed by the Administrative Agent) (acting at the Direction of the Required Lenders),
(A) each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Swiss Guaranty confirmed (or in another form reasonably satisfactory to the Administrative Agent (acting at the Direction of the Required Lenders) and the Borrower) reaffirm its Guaranty of the Obligations (including the Successor Borrower’s obligations under this Agreement),
(B) each Loan Party, unless it is the other party to such merger or consolidation, will, by a supplement to the Security Agreement (or in another form reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder,
(C) if reasonably requested by the Administrative Agent (acting at the Direction of the Required Lenders), each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, will, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent and the Borrower), confirm that its guarantee of the Swiss Obligations obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement;
(iii) [reserved]; and
(iv) to the extent reasonably requested by the Administrative Agent, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and an opinion other information in respect of counselthe Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, each stating that such merger or consolidation including the USA PATRIOT Act and such supplement to this Agreement or any Collateral Document comply with this AgreementBeneficial Ownership Regulations; provided, further, provided further that if the foregoing are satisfied, the Successor Borrower B▇▇▇▇▇▇▇ will succeed to, and be substituted for, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f5) so long as no Event of Default has occurred and is continuing or would result therefrom, Holdings may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) Holdings will be the continuing or surviving Person or (b) if:
(i) the Person formed by or surviving any such merger or consolidation is not Holdings,
(ii) Holdings is not the Person into which the applicable Person has been liquidated or
(iii) in connection with a disposition of all or substantially all of Holding’s assets, the Person that is the transferee of such assets is not Holdings (any such Person described in the preceding clauses (i) through (iii), a “Successor Holdings”), then the Successor Holdings will:
(A) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(B) 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 the Borrower (acting at the Direction of the Required Lenders),
(C) pledge 100% of the Equity Interests of the Borrower held by such Successor Holdings to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent (acting at the Direction of the Required Lenders) and the Borrower,
(D) if requested by the Administrative Agent, deliver, or cause the Borrower to deliver, to the Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this Agreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent (acting at the Direction of the Required Lenders); and
(iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and Beneficial Ownership Regulations; provided further that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(6) any Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other investment permitted pursuant to Section 7.05; provided that solely in the case of a merger or consolidation involving a Loan Party, no Event of Default exists or would result therefrom; provided further that the continuing or surviving Person will be (a) the Borrower or (b) a Subsidiary, in each case, which together with each of its Subsidiaries, will have complied with the applicable requirements of Section 6.11;
(7) a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Dispositiondisposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.05 7.04 or a disposition that does not constitute any Asset Sale (other than Section 7.05(ea transaction described in clause (b) of the definition of Asset Sale));
(8) the Borrower, Holdings and any Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name; and
(9) the Loan Parties and the Subsidiaries may consummate the Transactions.
Appears in 3 contracts
Sources: Super Priority Credit Agreement (WideOpenWest, Inc.), Super Priority Credit Agreement (WideOpenWest, Inc.), Credit Agreement (WideOpenWest, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, The Borrower will not consolidate with or into another Personmerge with or into, or Dispose transfer all or substantially all, or any substantial portion, of (whether its properties and assets to one or more Persons in one transaction or in a series of related transactionstransactions unless (i) if the Borrower is the surviving entity in any such consolidation or merger, after giving effect to such transaction, there would not exist any Default or Event of Default hereunder, (ii) if the Borrower is not the surviving entity in any such consolidation or merger, each of the Lenders (or in the case of any such consolidation or merger which is in the nature of an internal corporate reorganization of only the Borrower and its Subsidiaries and does not, in the reasonable judgment of the Required Lenders, affect, in any material respect, the creditworthiness of the Borrower, the Required Lenders) consents to such consolidation or merger in advance or (iii) if the Borrower transfers all or substantially all, or any substantial portion, of its properties and assets, the transferee or transferees thereto are wholly owned Subsidiaries (except the transferee or transferees of any substantial portion of its properties and assets, but not 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)properties and assets, except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall not be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing required to be organized under wholly owned Subsidiaries if the Laws of transfer is for fair consideration as reasonably determined by the United States, Borrower) and any state thereof or the District of Columbia;
(i) any Restricted Subsidiary such transferee that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted domestic Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is becomes a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party Guarantor hereunder pursuant to a supplement hereto or thereto Joinder Agreement substantially in the form reasonably satisfactory to of Exhibit D (it being understood that the Borrower and the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee on behalf of the Swiss Obligations shall apply Lenders, may agree to amendments hereto solely to provide for such guarantor arrangements as they may reasonably determine are necessary or useful). For the Successor Borrower’s obligations under purposes of this AgreementSection, and (D) such “Subsidiary” of the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion include any partnership, limited liability company or other entity of counsel, each stating that such merger which shares of stock 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, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 ownership interests having ordinary voting power (other than Section 7.06(b)(xix)stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or a Permitted Investment; provided that other managers thereof are at the continuing time owned, or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose management of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))otherwise controlled, directly or indirectly through one or more intermediaries, or both, by the Borrower.
Appears in 3 contracts
Sources: Credit Agreement (S&P Global Inc.), Credit Agreement (McGraw Hill Financial Inc), Credit Agreement (McGraw Hill Financial Inc)
Fundamental Changes. Merge(a) The Company will not, dissolveand will not permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of related transactions) all consolidate with it, or substantially all sell, transfer, lease or otherwise make any Disposition of its assets property or the Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) to ), or in favor of any Person (other than as part of the Transactions)liquidate or dissolve, except that:
(ai) the Company and its Subsidiaries may purchase and sell inventory in the ordinary course of business;
(ii) the Company and its Subsidiaries may enter into and consummate Permitted Acquisitions;
(iii) any Restricted Person may merge into the Company in a transaction in which the Company is the surviving corporation; and
(iv) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (A) any Subsidiary of may merge into a Loan Party in a transaction in which the Parent Borrower surviving entity is such Loan Party (provided that any such merger involving the Company must result in the Company as the surviving entity), (B) any wholly owned Subsidiary may merge, amalgamate merge into or consolidate with any wholly owned Subsidiary in a transaction in which the Parent Borrower (including surviving entity is a mergerwholly owned Subsidiary and no Person other than the Company or a wholly owned Subsidiary receives any consideration, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) if any such merger or consolidation does not result described in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
this clause (iB) any Restricted Subsidiary that is shall involve a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary the surviving entity of the Parent Borrower that is such merger shall be a Loan Party, (iiiC) any merger the sole purpose Subsidiary or Existing Joint Venture may sell, transfer, lease or otherwise dispose of which is its assets to reincorporate or reorganize a Loan Party in another jurisdiction in or any wholly owned Subsidiary pursuant to a transaction permitted under Section 6.04;
(v) the United States Company or any Subsidiary may sell Receivables under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount of $200,000,000);
(vi) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be permitted and (iv) continuing, any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower Company determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries Company and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefromprovided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (ivii) the transferee must be a Loan Party Company may sell, transfer or otherwise dispose of (iiA) to excess, damaged, obsolete or worn out assets and scrap in the extent constituting an Investmentordinary course of business, such Investment must be a Restricted Payment permitted by Section 7.06 and (B) other than Section 7.06(b)(xix)) property or a Permitted Investment;
(d) so long as no Event assets of Default has occurred the Company and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; its Subsidiaries provided that (i1) in at the case of a merger time thereof and immediately after giving effect to such sale, transfer or consolidation involving the Parent Borrowerother disposition, the Parent Borrower no Default shall have occurred and be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”)continuing, (A2) in the case such sale, transfer or disposal is for consideration at least 85% of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreementcash, and (D3) such Borrower shall have delivered consideration is at least equal to the Administrative Agent an officer’s certificate and an opinion fair market value of counselthe assets being sold, each stating that such merger transferred 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, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirementotherwise disposed of; and
(fviii) so long as no Event of Default has occurred and is continuing the Company or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 any Subsidiary may make Dispositions (other than Section 7.05(e))Dispositions of a type referred to in the foregoing clauses (i) through (vii) above) that, together with all other property of the Company and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (viii) during any fiscal year of the Company, do not constitute a Substantial Portion of the property of the Company and its Subsidiaries.
(b) The Company 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 Company and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.
Appears in 3 contracts
Sources: Credit Agreement (Fuller H B Co), Credit Agreement (Fuller H B Co), Credit Agreement (Fuller H B Co)
Fundamental Changes. Mergeof the Credit Agreement is hereby amended by inserting the following text immediately preceding the period (“.”) at the end of said Section: “; provided, that the Borrower may, or may cause its Subsidiaries to, liquidate, wind up, dissolve, liquidate, consolidate deregister or take similar action 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) respect to or in favor of any Person (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, Foreign Subsidiaries listed on Schedule 7.04(a) (Dormant Foreign Subsidiaries) or (ii) any Restricted Permitted Restructured Foreign Subsidiary that the Administrative Agent approves in writing (other than such approval shall be subject to the Administrative Agent’s receipt and review of (x) a Borrower) may merge or consolidate with or into any other Restricted Subsidiary certificate from a Responsible Officer of the Parent Borrower certifying that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in such Permitted Restructured Foreign Subsidiary meets the case definition of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland“Permitted Restructured Foreign Subsidiary”, (B) the Successor Borrower shall expressly assume all the obligations contemplated liquidation, windup, dissolution, deregistration or similar action of such Permitted Restructured Foreign Subsidiary is necessary for or beneficial to (taking into account all relevant factors) the Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agentits Subsidiaries, (C) substantially all of the assets of such Permitted Restructured Foreign Subsidiary have been transferred or will be transferred in connection with the case of any such transaction involving Swiss Subsidiary Borrowercontemplated liquidation, each Swiss Guarantorwind up, unless it is the other party to such merger dissolution, deregistration or consolidation, shall have by a supplement similar action to the Swiss Guaranty confirmed that its guarantee Borrower or a Subsidiary of the Swiss Obligations shall apply Borrower (or that such assets have been otherwise Disposed (or will be Disposed in connection with the contemplated liquidation, wind up, dissolution, deregistration or similar action) pursuant to the Successor Borrower’s obligations under a Disposition permitted by this Agreement, ) and (D) such Borrower no Default or Event of Default shall have delivered occurred and be continuing both before and immediately after giving effect to such liquidation, wind up, dissolution, deregistration or similar action and (y) any other documentation or information, financial or otherwise, that the Administrative Agent an officerreasonably requests, including, without limitation, calculations in reasonable detail supporting Borrower’s certificate and an opinion of counsel, each stating certification that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this AgreementPermitted Restructured Foreign Subsidiary meets the definition of “Permitted Restructured Foreign Subsidiary”); provided, further, that if in connection with strategic tax planning by the foregoing are satisfiedBorrower and its Subsidiaries, notwithstanding anything to the contrary in this Agreement, but subject to each Loan Party’s obligations under Section 6.14 and Section 6.20 of this Agreement to the extent applicable, (i) the Borrower may, or may cause its Subsidiaries to, restructure the ownership of those Foreign Subsidiaries identified on Schedule 7.04(b)(Restructured Foreign Subsidiaries), including in a manner that may result in one or more of such Foreign Subsidiaries becoming Subsidiaries of other Foreign Subsidiaries of the Borrower and no longer being owned directly by a Loan Party, and (ii) with the prior written consent of the Administrative Agent, the Successor Borrower will succeed may, or may cause its Subsidiaries to, restructure the ownership of Permitted Restructured Foreign Subsidiaries, including in a manner that may result in such Permitted Restructured Foreign Subsidiaries becoming subsidiaries of other Foreign Subsidiaries of Borrower and be substituted forno longer being owned directly by a Loan Party, such subject to the Administrative Agent’s receipt and review of (x) a certificate from a responsible officer of the Borrower under this Agreement;
confirming that (e1) so long as each entity subject to the proposed restructuring meets the definition of “Permitted Restructured Foreign Subsidiary”, and (2) no Default or Event of Default has shall have occurred and is be continuing both before and immediately after giving effect to such restructuring, and (y) any other documentation or would result therefrom information, financial or otherwise, that the Administrative Agent reasonably requests, including, without limitation, calculations in reasonable detail supporting Borrower’s certification that such Permitted Restructured Foreign Subsidiary meets the definition of “Permitted Restructured Foreign Subsidiary”. In accordance and compliance with Section 9.11(b) (in the case of a merger, amalgamation or consolidation involving a Loan PartyCollateral and Guaranty Matters), the Administrative Agent is authorized, without further action or consent of the Lenders or L/C Issuer, to release any Restricted Pledged Stock of any Foreign Subsidiary may mergeset forth on Schedule 7.04(a) or Schedule 7.04(b), amalgamate or consolidate together with each Subsidiary of such Foreign Subsidiary, and any Permitted Restructured Foreign Subsidiary in connection with any other Person in order to effect an Investment liquidation, wind up, dissolution, deregistration or similar action or restructuring permitted pursuant to this Section 7.06 7.04 (other than Section 7.06(b)(xix)Fundamental Changes) or a Permitted Investment; provided that upon the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiaryoccurrence of such event or, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under reasonably necessary to facilitate the Collateral and Guarantee Requirement; and
(f) so long occurrence of such contemplated event, prior to such event, as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))well as in connection with any Permitted Intercompany Merger.”.
Appears in 3 contracts
Sources: Credit Agreement (Jarden Corp), Credit Agreement (Jarden Corp), Credit Agreement (Jarden Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Borrower, no Existing 2016 Notes shall remain outstanding at the time of such merger or consolidation, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non- Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted (provided that the surviving Person shall be a Loan Party) and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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 InvestmentInvestment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or Subsidiary which is not a Permitted InvestmentLoan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, and (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) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate certificate, if requested by the Administrative Agent, 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, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any Person other Person than the Borrower (i) in order to effect an Investment permitted pursuant to Section 7.06 7.02 or (ii) for any other than Section 7.06(b)(xix)) or a Permitted Investmentpurpose; provided that (A) the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.11; and (B) in the case of subclause (ii) only, (1) if the merger or 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 Administrative Agent and (2) the Borrower shall be in compliance with the financial covenant set forth in Article VIII to the extent required under the Collateral and Guarantee Requirementthen applicable (calculated on a Pro Forma Basis); and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))7.05.
Appears in 3 contracts
Sources: Credit Agreement, Amendment and Restatement Agreement (Sabre Corp), Amendment and Restatement Agreement (Sabre Corp)
Fundamental Changes. Merge, dissolve, liquidate, (a) The Borrower will not 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 Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or merge into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Partycorporation or convey, (ii) transfer or lease its properties and assets substantially as an entirety to any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan PartyPerson, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then unless: (i) the transferee must corporation formed by such consolidation or into which the Borrower is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Borrower substantially as an entirety shall be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred corporation organized and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United StatesStates of America, any state thereof, State thereof or the District of Columbia and shall expressly assume, by writing approved by the Required Lenders, which approval shall not be unreasonably withheld, the Borrower’s obligation for the due and punctual payment of the principal of and interest on all Loans and the performance of every covenant of this Agreement on the part of the Borrower to be performed; and (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing. This paragraph (a) shall only apply to a merger or consolidation in which the Borrower is not the surviving corporation and to conveyances, leases and transfers by the Borrower as transferor or lessor.
(b) Upon any consolidation by the Borrower with or merger by the Borrower into any other corporation or any territory thereof conveyance, transfer or lease of the properties and assets of the Borrower substantially as an entirety in the case accordance with paragraph (a) of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrowerthis Section, the Successor Subsidiary successor corporation formed by such consolidation or into which the Borrower shall be an entity organized is merged or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower conveyance, transfer or lease is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, made shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such and may exercise every right and power of, the Borrower under this Agreement;
Agreement with the same effect as if such successor corporation had been named as the Borrower herein, and in the event of any such conveyance or transfer, the Borrower (ewhich term shall for this purpose mean the Person named as the “Borrower” in the first paragraph of this Agreement or any successor corporation which shall theretofore become such in the manner described in paragraph (a) so long as no Event of Default has occurred and is continuing or would result therefrom (this Section), except in the case of a mergerlease, amalgamation shall be discharged of all obligations and covenants under this Agreement and may be dissolved and liquidated.
(c) If, upon any such consolidation of the Borrower with or consolidation involving a Loan Party)merger of the Borrower into any other corporation, or upon any conveyance, lease or transfer of the property of the Borrower as an entirety or substantially as an entirety to any other Person, any Restricted Principal Property of the Borrower or of any Wholly-Owned Domestic Manufacturing Subsidiary may merge(or any shares of stock or Debt of any Wholly-Owned Domestic Manufacturing Subsidiary) would thereupon become subject to any Lien, amalgamate or consolidate with any other Person in order to effect an Investment permitted then unless such Lien could be created pursuant to Section 7.06 (other than Section 7.06(b)(xix)) 6.01 without equally and ratably securing the Loans, the Borrower, prior to or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiarysimultaneously with such consolidation, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, conveyance, lease or transfer, will as to such Principal Property, shares of stock or Debt, secure the Loans outstanding hereunder (together with, if the Borrower shall so determine, any other Debt of the Borrower now existing or hereafter created which is not subordinate to indebtedness hereunder) equally and ratably with (or prior to) the Debt which upon such consolidation, amalgamationmerger, dissolutionconveyance, liquidation, consolidation lease or Disposition, the purpose of which transfer is to effect a Disposition permitted pursuant become secured as to Section 7.05 (other than Section 7.05(e))such Principal Property, shares of stock or Debt by such Lien, or will cause such Loans to be so secured.
Appears in 3 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (United Technologies Corp /De/), Bridge Credit Agreement (United Technologies Corp /De/)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize not a Loan Party in another jurisdiction in the United States shall be permitted and (ivii) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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 InvestmentInvestment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or Subsidiary which is not a Permitted InvestmentLoan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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 or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such 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, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.06 7.02 or (ii) for any other than Section 7.06(b)(xix)) or a Permitted Investmentpurpose; provided that (A) the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.11; and (B) in the case of subclause (ii) only, if (1) the merger or 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 required under Administrative Agent and (2) the Collateral and Guarantee RequirementSenior Secured Leverage Ratio for the Test Period immediately preceding such merger or consolidation is less than or equal to 4.5 to 1.0 (calculated on a Pro Forma Basis);
(f) the Merger may be consummated; and
(fg) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))7.05.
Appears in 3 contracts
Sources: Credit Agreement (LVB Acquisition, Inc.), Credit Agreement (LVB Acquisition, Inc.), Credit Agreement (Biolectron, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its their Restricted Subsidiaries and is not materially disadvantageous to the Lenders; providedto, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge into or consolidate with any other Person; provided that , or permit any other Person to merge into or consolidate with it, 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, (i) any Person may merge into or consolidate with the Borrower in a transaction in which the case of a merger or consolidation involving Borrower is the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower entity or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or entity (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ) (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity is organized or existing under the laws of the United States, any state thereof, the District States of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandAmerica, (B) expressly assumes the Successor Borrower shall expressly assume all the Borrower’s obligations of such Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss each Subsidiary Borrower, each Swiss GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty Collateral Agreement (and, if reasonably requested by the Administrative Agent, each other applicable Security Document) confirmed that its guarantee obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and (D) 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 Swiss Obligations applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, provided that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such the Borrower under this Agreement;
, (eii) so long as no Event any Person (other than Holdings and the Borrower) may merge into or consolidate 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 is a Subsidiary Loan Party, is a Subsidiary Loan Party, (iii) any Restricted Subsidiary other than the Borrower may merge into or consolidate with any Person in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Restricted Subsidiary, (iv) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of Default has occurred the Borrower and is continuing or would result therefrom (in not materially disadvantageous to the case of a merger, amalgamation Lenders; provided that any such merger or consolidation involving a Loan Party)Person that is not a wholly owned Restricted Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04, and (v) the Borrower or any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person engage in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, dissolution or liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.05 6.05.
(b) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, engage to any material extent in any business other than businesses of the type to be conducted by the Borrower and the Restricted Subsidiaries as described in the Form 10 and businesses reasonably related, incidental or ancillary thereto.
(c) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, Holdings will not (i) engage in any business or activity other than the ownership of all the outstanding Equity Interests of the Borrower and activities incidental thereto and compliance with its obligations under the Loan Documents, (ii) own or acquire any assets (other than Section 7.05(eEquity Interests of the Borrower, cash and Permitted Investments), (iii) incur any liabilities (other than liabilities under the Loan Documents, liabilities imposed by law, including tax liabilities, and other liabilities incidental to its existence and permitted business and activities) or (iv) incur or permit to exist any Liens on any of its assets (other than the Liens created by the Loan Documents and Liens imposed by law).
Appears in 3 contracts
Sources: Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.)
Fundamental Changes. MergeThe Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, Person or Dispose of (whether reorganize itself 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 Transactions)non-U.S. jurisdiction, except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a mergeri) any Loan Party, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower Loan Party shall be the continuing or surviving Person, and Person or (yii) such merger any one or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbiamore other Subsidiaries;
(ib) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower Borrower, the Guarantor or another Restricted Subsidiary; provided ;
(c) Investments that if the transferor in such a transaction is a Loan Party, then (i) the transferee must are permitted under Section 7.02 shall be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by under this Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment7.04;
(d) so long as no Event of Default has occurred and is continuing [reserved]; and
(e) any Restricted Subsidiary or would result therefrom, any the Borrower may merge or consolidate with any other PersonPerson that is not a Subsidiary in connection with an Investment permitted under Section 7.02; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, (A) the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation Person or (iiB) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent a Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A1) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United StatesU.S., any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandColumbia, (B2) the Successor Borrower shall expressly assume all of the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent and (3) the Guarantor shall expressly reaffirm its Guarantee of the Obligations pursuant to a supplement in form and substance reasonably satisfactory to the Administrative Agent; provided that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation and (Cii) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) 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 involving the Guarantor 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, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may mergeand not involving the Borrower, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall must be the Parent Borrower Guarantor (or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with become the applicable requirements of Section 6.11 to Guarantor upon the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)consummation thereof).
Appears in 3 contracts
Sources: Credit Agreement (Safehold Inc.), Credit Agreement (Safehold Inc.), Credit Agreement (Safehold Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 3 contracts
Sources: Credit Agreement (Quintiles IMS Holdings, Inc.), Credit Agreement (Quintiles IMS Holdings, Inc.), Credit Agreement (Quintiles IMS Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) The Borrower will not, and will not permit any Restricted Subsidiary of the Parent Borrower may mergeto, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower merge into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that , or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except 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) any Person may merge into or consolidate with the Borrower in a transaction in which (x) the case Borrower is the surviving entity or (y) the other party is the surviving entity of a such merger or consolidation involving the Parent Borrower(in such event, the Parent Borrower such surviving entity shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ) so long as (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity is organized or existing under the laws of the United States, any state thereof, the District States of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandAmerica, (B) the Successor Borrower shall expressly assume all assumes the Borrower’s obligations of such Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto thereto, as applicable, in form and substance reasonably satisfactory to the Administrative Agent, (C) the Successor Borrower shall deliver to the Administrative Agent and each Lender (1) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been reasonably requested by the Administrative Agent or such Lender and (2) if the Successor ▇▇▇▇▇▇▇▇ qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Administrative Agent and each Lender shall have received, to the extent reasonably requested by the Administrative Agent or such Lender, a Beneficial Ownership Certification in respect of the case of any such transaction involving Swiss Successor Borrower and (D) each Subsidiary Borrower, each Swiss GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty Collateral Agreement and, if reasonably requested by the Administrative Agent, each other Security Document to which such Subsidiary Loan Party is a party confirmed that its guarantee of the Swiss Obligations obligations thereunder shall apply to the Successor Borrower’s obligations under this AgreementAgreement (it being understood that, and if the foregoing conditions in clauses (A) through (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, then the Successor Borrower will automatically succeed to, and be substituted for, such the Borrower under this Agreement;
), (eii) so long as no Event of Default has occurred and any Person (other than the Borrower) may merge into or consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is continuing or would result therefrom (in the case of a mergerRestricted Subsidiary and, amalgamation if any party to such merger or consolidation involving is a Subsidiary Loan Party), the surviving entity is or becomes a Subsidiary Loan Party, (iii) any Restricted Subsidiary may merge, amalgamate merge into or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than the Borrower) in a transaction permitted under Section 7.06(b)(xix)) or a Permitted Investment; provided that 6.05 in which, after giving effect to such transaction, the continuing or surviving Person shall be the Parent Borrower or entity is not a Restricted Subsidiary, which together with each and (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution or change in legal form is in the best interests of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 Borrower and is not materially disadvantageous to the extent required under Lenders; provided that any such liquidation, dissolution or change involving a Person that is not a wholly-owned Restricted Subsidiary immediately prior to such liquidation, dissolution or change shall not be permitted unless it is also permitted by Section 6.04; provided, further, that in connection with any such liquidation or dissolution of a Loan Party, the Collateral and Guarantee Requirement; andassets of such Loan Party shall be transferred to another Loan Party.
(fb) so long as no Event of Default has occurred The Borrower will not, and is continuing or would result therefromwill not permit any Restricted Subsidiary to, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is engage to effect a Disposition permitted pursuant to Section 7.05 (any material extent in any business other than Section 7.05(e))businesses of the type conducted by the Borrower and the Restricted Subsidiaries on the Effective Date and businesses reasonably related, complementary or ancillary thereto or a reasonable extension or expansion thereof as determined by the Borrower in good faith.
Appears in 2 contracts
Sources: Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Borrower, no Existing 2016 Notes shall remain outstanding at the time of such merger or consolidation, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted (provided that the surviving Person shall be a Loan Party) and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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 InvestmentInvestment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or Subsidiary which is not a Permitted InvestmentLoan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, and (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) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate certificate, if requested by the Administrative Agent, 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, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any Person other Person than the Borrower (i) in order to effect an Investment permitted pursuant to Section 7.06 7.02 or (ii) for any other than Section 7.06(b)(xix)) or a Permitted Investmentpurpose; provided that (A) the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.11; and (B) in the case of subclause (ii) only, (1) if the merger or 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 Administrative Agent and (2) the Borrower shall be in compliance with the financial covenant set forth in Article VIII to the extent required under the Collateral and Guarantee Requirementthen applicable (calculated on a Pro Forma Basis); and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))7.05.
Appears in 2 contracts
Sources: Term Loan Amendment (Sabre Corp), Tenth Term Loan B Refinancing Amendment (Sabre Corp)
Fundamental Changes. MergeNone of the Lead 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 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 Transactionsincluding, in each case, pursuant to a Delaware LLC Division), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent (i) a Borrower (including a merger, the purpose of which is to reorganize the Parent such Borrower into a new jurisdiction); provided that (x) the Parent such Borrower shall be the continuing or surviving Person, Person and (y) such merger or consolidation does not result in the Parent such Borrower ceasing to be (1) with respect to the Lead Borrower, organized under the Laws laws of Bermuda or the United States, any state thereof or the District of Columbia and (2) with respect to the Other Borrower Party, the United States, any state thereof or the District of Columbia, (ii) the Lead Borrower or (iii) one or more other Restricted Subsidiaries; provided that when any Person that is a Loan Party is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Non-Loan Party, Party and (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form (x) if the Parent Lead Borrower determines in good faith that such action is in the best interests interest of the Parent Lead Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; providedLenders 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 clauses any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (ii) and (iiiit 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), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Lead Borrower or another any other Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (i) the transferee must be a Loan Party 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 Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or Subsidiary that is not a Permitted InvestmentLoan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) (I) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any each Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary such Borrower shall be the continuing or surviving corporation or company or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent a Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized, (i) with respect to the Lead Borrower, organized or existing under the laws of Bermuda or the United States, any state thereof, thereof or the District of Columbia or and (i) with respect to the Other Borrower Party, the United States, any territory state thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case District of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandColumbia, (B) the Successor Borrower shall expressly assume all the obligations of such the applicable Borrower under this Agreement and the other Credit 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) in each Guarantor, unless it is the case of any other party to such transaction involving Swiss Subsidiary merger or consolidation, shall have confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty Security Agreement and other applicable Collateral Documents confirmed that its guarantee of the Swiss Obligations obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreementthe Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under the Loan Documents, and (DF) such the Lead Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with 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, such the applicable Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 2 contracts
Sources: Credit Agreement (Bumble Inc.), Credit Agreement (Bumble Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent 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, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize not a Loan Party in another jurisdiction in the United States shall be permitted and (ivii) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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 InvestmentInvestment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or Subsidiary which is not a Permitted InvestmentLoan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Parent Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Parent Borrower under this Agreement and the other Credit Loan Documents to which such the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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 or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such 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 Borrower will succeed to, and be substituted for, such the Parent Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.06 7.02 or (ii) for any other than Section 7.06(b)(xix)) or a Permitted Investmentpurpose; provided that (A) the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.11; and (B) in the case of subclause (ii) only, if (1) the merger or consolidation involves a U.S. Loan Party and such U.S. Loan Party is not the surviving Person, the surviving Restricted Subsidiary shall expressly assume all the obligations of such U.S. Loan Party under this Agreement and the other Loan Documents to which the U.S. Loan Party is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the extent required under Administrative Agent and (2) the Collateral and Guarantee RequirementSecured Leverage Ratio for the Test Period immediately preceding such merger or consolidation calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10 is less than or equal to 4.5 to 1.0;
(f) the Merger may be consummated; and
(fg) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))7.05.
Appears in 2 contracts
Sources: Credit Agreement (Avaya Inc), Credit Agreement (VPNet Technologies, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia 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 Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; , provided, in the case of clauses (ii) and through (iiiiv), that (A) no Event of Default would shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a permitted Investment in a Restricted Payment permitted by Section 7.06 Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.06(b)(xix7.02(e)) or a Permitted Investment);
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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 or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such 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, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom therefrom, Holdings may merge or consolidate with any other Person; provided that (in A) Holdings shall be the case of a continuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation involving is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”) (A) the Successor Holdings 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 Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Party)Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) 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 Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(f) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 7.02 (other than Section 7.06(b)(xix7.02(e)) or a Permitted Investment); provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement6.11;
(g) [Reserved]; and
(fh) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 2 contracts
Sources: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Fundamental Changes. MergeThe Borrower will not, dissolveand will not permit any Significant Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, consummate a Division as the Dividing Person or sell, transfer, lease or otherwise dispose of (whether directly or indirectly, in one transaction or in a series of related transactions) all or substantially all of the assets of the Borrower and its assets Subsidiaries taken as a whole (in each case, whether now owned or hereafter acquired) to ), or in favor of any Person (other than as part of the Transactions)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 of the Parent Borrower or other Person may merge, amalgamate merge into or consolidate with the Parent Borrower in a transaction in which the Borrower is the surviving corporation, (including a mergerii) [reserved], the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (xiii) the Parent Borrower shall be or any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the continuing Borrower or to another Subsidiary, (iv) so long as no Change of Control would result therefrom and the surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be entity is organized under the Laws laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is Columbia and agrees in writing in a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary manner and pursuant to documentation reasonably acceptable to the Administrative Agent to assume the obligations of the Parent Borrower that is a Non-under the Loan Party, Documents (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate and provides customary certificates and legal opinions in connection therewith consistent with or into any other Restricted Subsidiary of such relevant certifications and legal opinions delivered on the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted Effective Date and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous otherwise reasonably acceptable to the Lenders; provided, in the case of clauses (ii) and (iiiAdministrative Agent), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge into or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation agrees to use commercially reasonable efforts to provide any documentation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed other information required by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the bank regulatory authorities under applicable “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrowerknow your customer” and each of anti-money laundering rules and regulations, including the Successor Parent Borrower and the Successor Subsidiary BorrowersUSA PATRIOT Act, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party with respect to such merger or consolidation, shall have other Person that is reasonably requested by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counselor a Lender, each stating that such merger or consolidation and such supplement to this Agreement or (v) 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, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate merge into or consolidate with any other Person in order a transaction in which the surviving entity is a Subsidiary, (vi) 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 effect an Investment permitted pursuant to Section 7.06 the Lenders, and (vii) any Subsidiary may merge with any other than Section 7.06(b)(xix)) or Person in a Permitted Investmenttransaction in which the surviving entity is not a Subsidiary; provided that such transaction does not constitute the continuing disposition of all or surviving Person shall be substantially all assets of the Parent Borrower or and its subsidiaries taken as a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))whole.
Appears in 2 contracts
Sources: Credit Agreement (Vmware, Inc.), Term Loan Credit Agreement (Vmware, Inc.)
Fundamental Changes. Merge(a) The Parent and the Borrower will not, dissolveand will not permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or permit any other Person to merge into or consolidate with it, or otherwise Dispose of (whether in one transaction all, or in a series substantially all, of related transactions) its assets, or all or substantially all of the stock of any of its assets Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, or divide into two or more Persons, including becoming a Delaware Divided LLC (whether or not the original Person survives such division), or create, or reorganize into, one or more series pursuant to a Delaware LLC Division or otherwise, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) to or any Subsidiary (other than a Subsidiary Guarantor that owns a Collateral Pool Property) may merge into the Borrower in favor of a transaction in which the Borrower is the surviving corporation and there is no Change in Control, (ii) any Person (other than as part of a Subsidiary Guarantor that owns a Collateral Pool Property) may merge into any Subsidiary in a transaction in which the Transactions)surviving entity is a Subsidiary and there is no Change in Control, except that:
(aiii) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a BorrowerSubsidiary Guarantor that owns a Collateral Pool Property) may merge Dispose of its assets to the Borrower or consolidate with or into any other Restricted to another Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a BorrowerSubsidiary Guarantor that owns a Collateral Pool Property) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided
(b) The Parent and 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 case type conducted by the Borrower and its Subsidiaries on the date of clauses (ii) execution of this Agreement and (iii), no Event of Default would result therefrom;businesses reasonably related thereto.
(c) any Restricted Subsidiary (The Borrower and the Parent will not permit their fiscal years to end on a day other than a December 31 or change the Borrower) may Dispose ’s or the Parent’s method of all or substantially all of determining its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;fiscal quarters.
(d) so long as no Event The Parent shall not directly own or acquire any Real Estate, and the Parent shall not conduct any substantial business activities other than the direct or indirect ownership of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) Equity Interests in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing its Subsidiaries and ancillary or surviving corporation and incidental business in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrowerconnection therewith (including, without limitation, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case issuance of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”Permitted Convertible Indebtedness), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).. 125 DB3/ 204690278.10
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Veris Residential, L.P.), Revolving Credit and Term Loan Agreement (Veris Residential, 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 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 Transactions)Person, except that:
(a) Parent or any Restricted Subsidiary of may merge with (i) the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger of Parent with and into the Borrower, Parent shall have no direct Subsidiaries at the time of such merger other than Foreign Holdings or Holdings, or (ii) Parent or any one or more other Restricted Subsidiaries other than the Borrower; provided that (i) when Parent or any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person and (ii) in the case of a merger of Parent with another Restricted Subsidiary, Parent shall have no direct Subsidiaries at the time of such merger other than Foreign Holdings or Holdings; provided, further that if a Specified Foreign Subsidiary is merging with another Restricted Subsidiary that is not a Subsidiary of Holdings, such surviving Person shall be a Guarantor;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize not a Loan Party in another jurisdiction in the United States shall be permitted and (ivii) any Restricted Subsidiary (other than a the Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a permitted Investment in or Indebtedness of a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or Subsidiary which is not a Permitted InvestmentLoan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee 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) 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 Swiss Obligations applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such 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, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary may merge, amalgamate or consolidate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment7.02; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and6.11;
(f) [reserved];
(g) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 7.05; and
(other than Section 7.05(e))h) so long as no Default shall have occurred and be continuing or (in the case of the Foreign Reorganization) would result therefrom, the Foreign Reorganization and any Permitted Intercompany Transfer may be consummated.
Appears in 2 contracts
Sources: Credit Agreement (Freescale Semiconductor Holdings I, Ltd.), Credit Agreement (Freescale Semiconductor Holdings I, Ltd.)
Fundamental Changes. MergeThe Borrower will not, dissolve, liquidateand will not permit any of its Material Subsidiaries to, consolidate with or into another Personwith, merge into, or Dispose sell all or substantially all of the assets of the Borrower or any Material Subsidiary (whether in one a single transaction or in a series of related transactions) all to any other Person or substantially all permit any other Person to merge into the Borrower or any of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Material Subsidiaries, except that:
(a) : the Borrower or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) its Material Subsidiaries may merge or consolidate with one another or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, Person so long as (iiii) any both before and immediately after giving effect to such merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii)consolidation, no Default or Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Partyshall have occurred and be continuing, then (i) the transferee must be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be is the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary BorrowerPerson, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (iiiii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation involving a Subsidiary Guarantor, the Subsidiary Guarantor is not the Parent surviving Person (unless the respective Subsidiary Guarantor is merging into or consolidating with the Borrower (any such Person, in which case the “Successor Parent Borrower”) or in Borrower will be the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”survivor thereof)), (Aiv) in the case of a merger or consolidation involving the Parent Borrowera Material Subsidiary, the Successor Material Subsidiary is the surviving Person (unless the respective Material Subsidiary is merging into or consolidating with the Borrower shall or a Subsidiary Guarantor (in which case the Borrower or the respective Subsidiary Guarantor, as the case may be, will be an entity organized or existing under the laws of the United States, any state survivor thereof, the District of Columbia or any territory thereof )) and (v) in the case of a merger or consolidation with or involving the Japanese a Material Subsidiary Borrower or the Swiss Subsidiary Borrowerany third Person, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a mergermay be, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted is consummated pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that an arm's length transaction and the continuing or surviving Person shall be the Parent Borrower or a Restricted the Subsidiary receives at least fair market value therefor (as determined in good faith by the Borrower or such Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with as the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)case may be).
Appears in 2 contracts
Sources: Credit Agreement (Waters Corp /De/), Credit Agreement (Waters Corp /De/)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent 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;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize not a Loan Party in another jurisdiction in the United States shall be permitted and (ivii) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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 InvestmentInvestment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or Subsidiary which is not a Permitted InvestmentLoan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Parent Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Parent Borrower under this Agreement and the other Credit Loan Documents to which such the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss each Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty Security Agreement confirmed that its guarantee of the Swiss Obligations obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such 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 Borrower will succeed to, and be substituted for, such the Parent Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.06 7.02 or (ii) for any other than Section 7.06(b)(xix)) or a Permitted Investmentpurpose; provided that (A) the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.11; and (B) in the case of subclause (ii) only, if (1) the merger or consolidation involves a Subsidiary Borrower and such Subsidiary Borrower is not the surviving Person, the surviving Restricted Subsidiary shall expressly assume all the obligations of such Subsidiary Borrower under this Agreement and the other Loan Documents to which the Subsidiary Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the extent required under Administrative Agent and (2) the Collateral and Guarantee RequirementSenior Secured Leverage Ratio for the Test Period immediately preceding such merger or consolidation is less than or equal to 4.5 to 1.0 (calculated on a Pro Forma Basis);
(f) the Merger may be consummated; and
(fg) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))7.05.
Appears in 2 contracts
Sources: Credit Agreement (LVB Acquisition, Inc.), Credit Agreement (Biolectron, Inc.)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve (including, in each case, pursuant to a Delaware LLC Division) 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 Transactions), except that:
(a1) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, merger the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, and ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;and
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving of Holdings with and into the Parent Borrower, ,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or under this Agreement,
(ii) in Holdings shall have no direct Subsidiaries at the case time of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not other than the Parent Borrower Borrower,
(any iii) no Event of Default exists at such Persontime or after giving effect to such transaction, the “Successor Parent Borrower”and
(iv) or in the case of after giving effect to such transaction, a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each direct parent of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), will (AI) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower Holdings under this Agreement and the other Credit Loan Documents to which such Borrower Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent and the Borrower and (CII) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee pledge 100% of the Swiss Obligations shall apply to Equity Interests of the Successor Borrower’s obligations under this Agreement, and (D) Borrower held by such Borrower shall have delivered direct parent to the Administrative Agent an officer’s certificate as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent 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, such Borrower under this AgreementBorrower;
(ea) so long as no Event of Default has occurred and any Restricted Subsidiary that is continuing not a Loan Party may merge or would result therefrom (in the case of a merger, amalgamation consolidate with or consolidation involving into any other Restricted Subsidiary that is not a Loan Party), ;
(b) any Restricted Subsidiary may merge, amalgamate merge or consolidate with or into any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or Restricted Subsidiary that is a Permitted InvestmentLoan Party; provided that a Loan Party shall be the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; andPerson;
(fc) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, any merger the sole purpose of which is to effect reincorporate or reorganize a Disposition Loan Party or Restricted Subsidiary in another jurisdiction in the United States will be permitted; and
(d) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided that in the case of clause (d), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted pursuant to under Section 7.05 (other than Section 7.05(e)).7.05;
Appears in 2 contracts
Sources: First Lien Credit Agreement (Convey Holding Parent, Inc.), First Lien Credit Agreement (Convey Holding Parent, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, or Dispose of (whether in one transaction or in effect 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 Transactions)Division, except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that:
(xi) the Parent Borrower shall be the continuing or surviving Person, and ; and
(yii) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(ib) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, or liquidate or dissolve;
(iiic) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party Restricted Subsidiary in another jurisdiction in the United States shall be permitted and permitted;
(ivd) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lendersform; provided, in the case of clauses provided (iii) and (iii), no Event of Default would shall result therefromtherefrom and (ii) the surviving Person (or the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be a Restricted Subsidiary;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(de) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that that:
(i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or corporation; or
(ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ;
(A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, Columbia;
(B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, ;
(C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and ;
(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) if requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement; and
(F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement, and, with respect to such opinion of counsel only, including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; provided, further, it being agreed that if the foregoing are satisfied, the Successor Borrower ▇▇▇▇▇▇▇▇ will succeed to, and be substituted for, such the Borrower under this Agreement;
(ef) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person in order to effect an Investment Investment, Acquisition Transaction or other transaction not prohibited by the Loan Documents;
(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, then each surviving or resulting Person shall constitute a “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); and
(ii) if a Division is conducted by a Loan Party other than the Borrower, 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 7.06 7.05 (other than Section 7.06(b)(xix7.05(e)) or a Permitted Investmentotherwise would constitute an Excluded Subsidiary; provided further that 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 the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of permitted under this Section 6.11 7.04(g)(ii) solely to the extent required permitted under the Collateral and Guarantee RequirementSection 7.02; and
(fh) so as long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)). Notwithstanding anything herein to the contrary, in the event of any merger, dissolution, liquidation, consolidation, amalgamation or Division of any Loan Party or a Restricted Subsidiary effected in accordance with this Section 7.04, the Borrower shall or shall cause, with respect to each surviving Restricted Subsidiary (a) promptly deliver or cause to be delivered to the Administrative Agent 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 Administrative Agent or Collateral Agent may reasonably request in order to perfect or continue the perfection of the Liens granted or purported to be granted by the Collateral Documents in accordance with Section 6.11 and as promptly as practicable.
Appears in 2 contracts
Sources: First Amendment (Allegro Microsystems, Inc.), Credit Agreement (Allegro Microsystems, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that, so long as no Default exists or Dispose of would result therefrom, (whether in one transaction i) any Person may merge with or into, consolidate with or amalgamate with the Borrower in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or transaction in favor of any Person (other than as part of which the Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Person (other than Parent Guarantor) may merge with or into, consolidate with or amalgamate with any Subsidiary (other than a the Borrower) may merge in a transaction in which the continuing or consolidate with or into any other Restricted surviving Person shall be a Subsidiary of the Parent Borrower that is a Loan PartyBorrower, (iii) any merger Subsidiary of the sole purpose of which is Borrower may merge with or into, consolidate with or amalgamate with any Person in order to reincorporate consummate a Disposition permitted by Section 7.05 or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and an Investment; (iv) any Restricted Subsidiary of the Borrower may merge into, the Parent Guarantor, the Borrower or any other Subsidiary of the Borrower; and (other than a Borrowerv) any Subsidiary of the Borrower may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided. For the avoidance of doubt, in the case of clauses connection with an internal restructuring, (iix) and (iii)DOC OP may merge, no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of consolidate or amalgamate with or into, or distribute or transfer all or substantially all of its assets to, DOC or the Borrower and (upon voluntary liquidation y) DOC may merge, consolidate or otherwise) amalgamate with or into, or distribute or transfer all or substantially all its assets to, the Borrower, it being understood and agreed that, in the event the successor or transferee entity in any such transaction expressly assumes the obligations of DOC OP under any DOC Debt, such assumption shall be permitted notwithstanding anything to the Parent Borrower or another Restricted Subsidiarycontrary in this Article VII and shall not constitute a new incurrence of Indebtedness for purposes of Section 7.03; provided that if that, the transferor Loan Parties shall provide such customary “know your customer” documentation as the Lenders may reasonably require in connection with such a transaction is a Loan Partytransfer. For avoidance of doubt, then (i) the transferee must be a Loan Party or (ii) in each case to the extent constituting an Investmenta merger, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) dissolution, liquidation or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefromconsolidation, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower Janus IPO Transactions is permitted under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))7.04.
Appears in 2 contracts
Sources: Credit Agreement (Healthpeak Properties, Inc.), Term Loan Agreement (Healthpeak Properties, Inc.)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary to, liquidatedirectly or indirectly, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of related transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)dissolve, except that:
(a) any Restricted Subsidiary , if at the time thereof and immediately after giving effect thereto no Default or Event of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower Default shall have occurred and be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted wholly owned Subsidiary that may merge into the Borrower in a transaction in which the Borrower is a Non-Loan Party the surviving corporation, and (other than a Borrowerii) any wholly owned Subsidiary may merge, amalgamate or consolidate merge with or into any other Restricted wholly owned Subsidiary in a transaction in which the surviving entity is a Subsidiary and (if any party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party; provided that in connection with the foregoing, the appropriate Loan Parties shall take all actions necessary or reasonably requested by the Collateral Agent to maintain the perfection or perfect, as the case may be, protect and preserve the Liens on the Collateral granted to the Collateral Agent pursuant to the Security Documents and otherwise comply with the provisions of Sections 5.11 and 5.12, in each case, on the terms set forth therein and to the extent applicable.
(b) Notwithstanding the foregoing, any Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) may dispose of any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; any Subsidiary Loan Party (provided that if in connection with the transferor foregoing, the appropriate Loan Parties shall take all actions necessary or reasonably requested by the Collateral Agent to maintain the perfection or perfect, as the case may be, protect and preserve the Liens on the Collateral granted to the Collateral Agent pursuant to the Security Documents and otherwise comply with the provisions of Sections 5.11 and 5.12, in such a transaction is a Loan Partyeach case, then (i) on the transferee must be a Loan Party or (ii) terms set forth therein and to the extent constituting an Investmentapplicable), such Investment must be and any Subsidiary which is not a Restricted Payment permitted by Section 7.06 Subsidiary Loan Party may dispose of assets to any other Subsidiary which is not a Subsidiary Loan Party.
(c) The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, engage in any business other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each businesses of the Successor Parent type conducted by the Borrower and its Subsidiaries on the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 Effective Date and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))related thereto.
Appears in 2 contracts
Sources: Credit Agreement (Constar Inc), Credit Agreement (Constar International Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the TransactionsAcquisition), except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Borrower, (1) Holdings shall not be an obligor in respect of any Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, (2) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower, (3) no Default or Event of Default shall exist at such time or after giving effect to such merger or consolidation, (4) 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 (5) such direct parent of the Borrower shall pledge 100% of the Equity Interest of the Borrower to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders; , provided, in the case of clauses (ii) and through (iiiiv), that (A) no Event of Default would shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (ix) the transferee must be a Loan Party or (iiy) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Payment permitted by Subsidiary which is not a Loan Party in accordance with Section 7.06 7.02 (other than Section 7.06(b)(xix7.02(e)) or a Permitted Investment);
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandColumbia, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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 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) if requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement, and, with respect to such opinion of counsel only, including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such the Borrower under this Agreement;
(e) so long as no Event Default exists or would result therefrom, Holdings may merge or consolidate with any other Person; provided that (i) Holdings shall be the continuing or surviving Person or (ii) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”) (A) the Successor Holdings 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 Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) the Successor Holdings shall pledge 100% of the Equity Interest of the Borrower to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and (D) the Borrowers shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement and, with respect to such opinion of counsel only, including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(f) so long as no Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation merger or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 7.02 (other than Section 7.06(b)(xix7.02(e)) or a Permitted Investment); provided that the continuing or surviving Person shall be (i) the Parent Borrower or (ii) a Restricted SubsidiarySubsidiary (provided that if such Restricted Subsidiary is a Loan Party, then the continuing or surviving Person shall also be a Loan Party), in each case, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.11;
(g) the Acquisition may be consummated on the Closing Date;
(h) the Post-Closing Mergers may be consummated; provided that (A) 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, (B) each Guarantor, unless it is the other party to such Post-Closing Mergers, shall have by a supplement to the extent required Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Loan Party, unless it is the Collateral other party to such Post-Closing Merger, 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 (it being understood that the requirements of (A), (B) and Guarantee Requirement(C) above need to be done only once by the ultimate Successor Borrower, the Guarantors and the Loan Parties upon consummation of the last merger specified in the definition of Post-Closing Mergers); and
(fi) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).;
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Advantage Solutions Inc.), First Lien Credit Agreement (Advantage Solutions Inc.)
Fundamental Changes. Merge(a) The Domestic Borrower will not, dissolveand will not permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of related transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)dissolve, except that:
(a) any Restricted Subsidiary of , if at the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower time thereof and immediately after giving effect thereto no Default shall have occurred and be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that may merge into the Domestic Borrower in a transaction in which the Domestic Borrower is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Partysurviving corporation, (ii) any Restricted Subsidiary (other than a Subsidiary Borrower) may merge or consolidate with or into any other Restricted Subsidiary in a transaction in which the surviving entity is a Subsidiary (provided that the Domestic Borrower's proportionate interest in the assets and business of the Parent Borrower that is a Loan Partymerged Subsidiary has not diminished), (iii) any merger Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the sole purpose of which is Domestic Borrower or to reincorporate or reorganize a Loan Party in another jurisdiction Subsidiary (provided that the Domestic Borrower's proportionate interest in the United States shall be permitted assets sold, transferred, leased, or disposed of has not diminished), and (iv) any Restricted Subsidiary (other than a Subsidiary Borrower) may liquidate or dissolve or change its legal form if the Parent Domestic Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Domestic Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, however, that if any assets (constituting Collateral) of any of the Collateral Grantor Subsidiaries will be sold, assigned, transferred or otherwise disposed of in any way by virtue of any of the actions otherwise permitted under any of the foregoing clauses (i) through (iv), the parties to such merger or other such action shall notify the Administrative Agent and shall take all steps reasonably required by the Administrative Agent to preserve the Collateral Agent's first priority perfected security interest in all such Collateral, prior to consummation of such action.
(b) The Domestic Borrower will not, and will not permit any Subsidiary to, sell, transfer, lease (as lessor) or otherwise dispose of (in one transaction or in any series of transactions) Equity Interests in any Subsidiary (whether owned on the Effective Date or thereafter acquired), or other assets of any kind, except for the following:
(i) sales of inventory in the case ordinary course of clauses business;
(ii) sales, conveyances and other transfers of accounts receivable permitted under Section 6.02(e);
(iii) transactions permitted under subsection (a) of this Section;
(iv) sales of obsolete equipment and other fixed assets sold in the normal course of business, provided that the net proceeds thereof are applied to the acquisition by the Domestic Borrower or a Subsidiary of operating assets used in the normal course of their business within 180 days from the date thereof (or, if such proceeds are received less than 180 days before the Maturity Date, provided that the Domestic Borrower can demonstrate to the reasonable satisfaction of the Administrative Agent that same will be so applied within such 180 day period);
(v) the sale of the Thousand Oaks Building; and
(vi) other sales, no Event conveyances and other transfers of Default would result therefrom;Equity Interests and assets of any kind, subject to an aggregate limit on the value of all such transfers under this clause (vi) of $25,000,000 during the 12-month period beginning on the Effective Date or on any anniversary thereof. Without limiting the foregoing, except as set forth above, neither the Domestic Borrower nor any Subsidiary shall sell, assign, discount or otherwise dispose of notes, accounts receivable or other rights to receive payment, with or without recourse, except for collections and credits in the ordinary course of business.
(c) The Domestic Borrower will not, and will not permit any Restricted Subsidiary (of its Subsidiaries to, engage in any business other than a Borrower) may Dispose businesses of all or substantially all the type conducted by the Domestic Borrower and its Subsidiaries on the date of its assets (upon voluntary liquidation or otherwise) execution of this Agreement and businesses reasonably related thereto except to an extent not material to the Parent Domestic Borrower or another Restricted Subsidiary; provided that if the transferor in such and its Subsidiaries taken as 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 Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;whole.
(d) so long as no Event The preceding paragraphs of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in this Section 6.03 shall not limit the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))Securitization Transactions.
Appears in 2 contracts
Sources: Credit Agreement (Volt Information Sciences Inc), Credit Agreement (Volt Information Sciences 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 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 Transactions)Person, except that:
(a) (i) any Restricted Subsidiary of the Parent Borrower Holdings may merge, amalgamate amalgamate, dissolve, liquidate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdictionjurisdiction in any State of the United States or the District of Columbia); provided that (x) the Parent Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower pursuant to documents reasonably acceptable to the Administrative Agent and the Borrower (or, if not the Borrower, the surviving Person, ) and (y) such merger shall be a corporation or consolidation does not result in the Parent Borrower ceasing to be a limited liability company organized under the Laws laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, Columbia and (ii) any Restricted Subsidiary (other than a Borrower) may merge merge, amalgamate, dissolve, liquidate or consolidate with any one or into any more other Restricted Subsidiary of Subsidiaries;
(b) the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary may (other than a Borrowerif the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests interest of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, Lenders in any material respect (it being understood that in the case of clauses (ii) 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 (iiiin 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), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another to any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (i) the transferee must either be the Borrower or be or become a Loan Party Guarantor or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 an Investment not prohibited hereunder; provided further that the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other than Section 7.06(b)(xix)) or a Permitted InvestmentLoan Party;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with with, or liquidate or dissolve into, any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that (i) the continuing or surviving Person shall be shall, to the Parent Borrower or a Restricted Subsidiaryextent required by the terms hereof, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.12, (ii) to the extent required under constituting an Investment, such Investment must be an Investment not prohibited hereunder and (iii) to the Collateral extent constituting a Disposition, such Disposition must be permitted hereunder;
(e) the Borrower and Guarantee Requirement; andthe other Restricted Subsidiaries may consummate the Transactions and any Transition Arrangements;
(f) so long as no Event of Default has occurred and is continuing any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is into another Person in order to effect a Disposition permitted pursuant to Section 7.05 7.04; and
(other than Section 7.05(e))g) any Investment may be structured as a merger, consolidation or amalgamation.
Appears in 2 contracts
Sources: First Lien Credit Agreement (V2X, Inc.), First Lien Credit Agreement (V2X, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, wind up, consolidate with or into another Person, reorganize, enter into a plan of reorganization, recapitalization or Dispose reclassify its Equity Interests (or agree to do any of the foregoing, unless such agreement provides as a condition to its effectiveness that either (whether y) the Required Lenders have consented in one transaction writing or will consent in a series of related transactionswriting concurrently with such effectiveness, or (z) (i) the Aggregate Commitments have been terminated or will be terminated concurrently with such effectiveness, (ii) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person the Secured Obligations (other than contingent indemnification obligations for which no claim has been asserted and any Other Liabilities which are not by their terms then due and payable provided that the Agents shall have received such indemnities and collateral security as part they shall have required in accordance with the terms of Section 10.11 of the TransactionsCredit Agreement) have been indefeasibly paid in full in cash or will be indefeasibly paid in full in cash concurrently with such effectiveness, (iii) all L/C Obligations have been, or will be concurrently with such effectiveness, reduced to zero (or fully Cash Collateralized or supported by another letter of credit in a manner reasonably satisfactory to the L/C Issuer and the Administrative Agent), and (iv) the Administrative Agent has, or will have concurrently with such effectiveness, no further obligation to endeavor to cause the L/C Issuer to issue Letters of Credit under the Credit Agreement), except that, so long as no Default or Event of Default shall have occurred and be continuing prior to or immediately after giving effect to any action described below or would result therefrom:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including with, or dissolve or liquidate into, a mergerLoan Party, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower Loan Party shall be the continuing or surviving Person, and (y) provided further that if a Borrower is party to any such merger or consolidation does not result in consolidation, such Borrower shall be the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof continuing or the District of Columbiasurviving Person;
(ib) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with with, or dissolve or liquidate into any other Restricted Subsidiary of the Parent Borrower that is (other than a Loan Party), (iii) any merger the sole purpose of which is to reincorporate or reorganize provided that if a Loan Party is party to any such merger or consolidation, the surviving Person shall upon the effectiveness of any such merger or consolidation, expressly assume all the duties, liabilities and Obligations of such Loan Party under this Agreement and the other Loan Documents pursuant to documentation in form and substance reasonably acceptable to the Administrative Agent, and provided further that in each case when any wholly-owned Subsidiary is merging or consolidating with another jurisdiction in Subsidiary, the United States wholly-owned Subsidiary shall be permitted and the continuing or surviving Person;
(ivc) in connection with a Permitted Acquisition, any Restricted Subsidiary of a Loan Party (other than a Borrower) may liquidate merge with or dissolve into or change its legal consolidate with any other Person or permit any other Person to merge with or into or consolidate with it; provided that (i) the Person surviving such merger or consolidation shall be a wholly-owned Subsidiary of a Loan Party, and (ii) if a Loan Party is party to any such merger or consolidation, (A) such Loan Party is the surviving Person or (B) the surviving Person shall upon the effectiveness of any such merger or consolidation, expressly assume all the duties, liabilities and Obligations of such Loan Party under this Agreement and the other Loan Documents pursuant to documentation in form if and substance reasonably acceptable to the Parent Borrower determines in good faith that such action is in the best interests Administrative Agent;
(d) (i) any Subsidiary of the Parent Borrower and (other than a Loan Party) may Dispose of all or substantially all of its Restricted Subsidiaries and is not materially disadvantageous assets (upon voluntary liquidation or otherwise) to the Lenders; provideda Loan Party or any one or more other Subsidiaries, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary Loan Party (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then and (iiii) the transferee must be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge Dispose of all or consolidate with substantially all of its assets (upon voluntary liquidation or otherwise) to any other PersonBorrower; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;and
(e) so long as no Event of Default has occurred any Loan Party and is continuing or would result therefrom (in the case any Subsidiary of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary Party may merge, amalgamate dissolve, liquidate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together connection with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 clauses (other than Section 7.05(eb), (f), (g), (h) or (l) of the definition of Permitted Dispositions.
Appears in 2 contracts
Sources: Credit Agreement (A.C. Moore Arts & Crafts, Inc.), Credit Agreement (A.C. Moore Arts & Crafts, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia 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 Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and through (iiiiv) of this paragraph (b), that (A) no Event of Default would shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a permitted Investment in a Restricted Payment permitted by Subsidiary which is not a Loan Party in accordance with Section 7.06 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 7.06(b)(xix)) or a Permitted Investment9.5;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandColumbia, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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 or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such 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, such the Borrower under this Agreement;
(e) [reserved];
(f) so long as no Event of Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 9.2 (other than Section 7.06(b)(xix9.2(e)) or a Permitted Investment); provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to Sections 8.11, 8.12 and 8.13;
(g) the extent required under the Collateral and Guarantee RequirementMerger may be consummated; and
(fh) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 9.5 (other than Section 7.05(e9.5(e)).
Appears in 2 contracts
Sources: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Fundamental Changes. MergeThe Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, Person or Dispose of (whether reorganize itself 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 Transactions)non-U.S. jurisdiction, except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a mergeri) any Loan Party, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower Loan Party shall be the continuing or surviving Person, and Person or (yii) such merger any one or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbiamore other Subsidiaries;
(ib) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower Borrower, the Guarantor or another Restricted Subsidiary; provided ;
(c) Investments that if the transferor in such a transaction is a Loan Party, then (i) the transferee must are permitted under Section 7.02 shall be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by under this Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment7.04;
(d) so long as no Event any dispositions of Default has occurred and is continuing assets or would result therefrommergers, dissolutions, liquidations or consolidations with another Person made in order to effect the Permitted Reorganization; and
(e) any Restricted Subsidiary or the Borrower may merge or consolidate with any other PersonPerson that is not a Subsidiary in connection with an Investment permitted under Section 7.02; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, (A) the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation Person or (iiB) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent a Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A1) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United StatesU.S., any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandColumbia, (B2) the Successor Borrower shall expressly assume all of the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent and (3) the Guarantor shall expressly reaffirm its Guarantee of the Obligations pursuant to a supplement in form and substance reasonably satisfactory to the Administrative Agent; provided that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation and (Cii) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) 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 involving the Guarantor 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, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may mergeand not involving the Borrower, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall must be the Parent Borrower Guarantor (or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with become the applicable requirements of Section 6.11 to Guarantor upon the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)consummation thereof).
Appears in 2 contracts
Sources: Credit Agreement (Istar Inc.), Credit Agreement (Safehold Inc.)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any of its Subsidiaries to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (whether in one a single transaction or in a series of related transactions) all or substantially all of the assets of the Borrower and its assets Subsidiaries on a consolidated basis (in each case, 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 Parent Borrower may merge, amalgamate liquidate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction)dissolve; provided that (x) if, at the Parent Borrower time thereof and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be the continuing or surviving Personcontinuing, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) the Borrower or any Restricted Subsidiary that may merge with a Person if the Borrower (or such Subsidiary if the Borrower is not a Non-Loan Party (other than a Borrowerparty to such merger) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of is the Parent Borrower that is a Non-Loan Partysurviving Person, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into another Subsidiary, provided that if any other Restricted Subsidiary of the Parent Borrower that party to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person, (iii) any merger Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the sole purpose of which is Borrower or to reincorporate or reorganize a Subsidiary Loan Party in another jurisdiction in the United States shall be permitted and Party, (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, (v) any Subsidiary may merge, dissolve or consolidate in connection with the case consummation of clauses (ii) any Permitted Acquisition, and (iii), no Event of Default would result therefrom;
(cvi) any Restricted Subsidiary (other than that is not a Borrower) Loan Party may Dispose sell, transfer, lease or otherwise dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if any Subsidiary of the transferor Borrower.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage 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 Restricted Payment permitted by Section 7.06 (any business other than Section 7.06(b)(xix)) businesses of the type conducted by the Borrower and its Subsidiaries on the date hereof and businesses ancillary or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing reasonably related to, or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrowerextensions of, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each business of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 2 contracts
Sources: Credit Agreement (Pennant Group, Inc.), Credit Agreement (Ensign Group, Inc)
Fundamental Changes. Merge, dissolve, liquidate, The Borrower will not consolidate with or into another Personmerge with or into, or Dispose transfer all or substantially all, or any substantial portion, of (whether its properties and assets to one or more Persons in one transaction or in a series of related transactionstransactions unless (i) if the Borrower is the surviving entity in any such consolidation or merger, after giving effect to such transaction, there would not exist any Default or Event of Default hereunder, (ii) if the Borrower is not the surviving entity in any such consolidation or merger, each of the Lenders (or in the case of any such consolidation or merger which is in the nature of an internal corporate reorganization of only the Borrower and its Subsidiaries and does not, in the reasonable judgment of the Required Lenders affect, in any material respect, the creditworthiness of the Borrower, the Required Lenders) consents to such consolidation or merger in advance or (iii) if the Borrower transfers all or substantially all, or any substantial portion, of its properties and assets, the transferee or transferees thereto are wholly owned Subsidiaries (except the transferee or transferees of any substantial portion of its properties and assets, but not 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)properties and assets, except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall not be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing required to be organized under wholly owned Subsidiaries if the Laws of transfer is for fair consideration as reasonably determined by the United States, Borrower) and any state thereof or the District of Columbia;
(i) any Restricted Subsidiary such transferee that is a Non-Loan Party (other than domestic Subsidiary becomes a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted joint and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party several guarantor hereunder pursuant to a supplement hereto or thereto in form documentation (including closing documentation and opinions) reasonably satisfactory to the Administrative Agent (it being understood that the Borrower and the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee on behalf of the Swiss Obligations shall apply Lenders, may agree to amendments hereto solely to provide for such guarantor arrangements as it may reasonably determine are necessary or useful). For the Successor Borrower’s obligations under purposes of this AgreementSection, and (D) such “Subsidiary” of the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion include any partnership, limited liability company or other entity of counsel, each stating that such merger which shares of stock 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, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 ownership interests having ordinary voting power (other than Section 7.06(b)(xix)stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or a Permitted Investment; provided that other managers thereof are at the continuing time owned, or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose management of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))otherwise controlled, directly or indirectly through one or more intermediaries, or both, by the Borrower.
Appears in 2 contracts
Sources: Credit Agreement (McGraw-Hill Companies Inc), 364 Day Credit Agreement (McGraw-Hill Companies 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 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 Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Lead Administrative Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the Parent Lead Administrative Borrower into a new jurisdiction); provided that (x) the Parent Lead Administrative Borrower shall be the continuing or surviving Person, and (y) such merger merger, amalgamation or consolidation does not result in (1) the Parent Lead Administrative Borrower ceasing to be organized or incorporated under the Laws of its Local Covered Jurisdiction or (2) any Loan Party becoming an Excluded Subsidiary, and (z) the United StatesEquity Interests of the Lead Administrative Borrower shall continue to be directly owned by one or more Loan Parties and pledged as Collateral pursuant to the terms of the Collateral Documents;
(b) any Borrower may merge, amalgamate or consolidate with another Borrower (including a merger or amalgamation, the purpose of which is to reorganize a Borrower into a new jurisdiction); provided that (x) a Borrower (or, to the extent the Lead Administrative Borrower shall be a party to any state thereof such merger, amalgamation or consolidation, the District Lead Administrative Borrower) shall be the continuing or surviving Person, (y) such merger, amalgamation or consolidation does not result in (1) a Borrower ceasing to be organized or incorporated under the Laws of Columbiaa Covered Loan Party Jurisdiction or (2) any Loan Party becoming an Excluded Subsidiary, and (z) the Equity Interests of each Borrower shall continue to be directly owned by one or more Loan Parties and pledged as Collateral pursuant to the terms of the Collateral Documents;
(i) any Restricted Subsidiary of Holdings that is not a Non-Loan Party may merge or consolidate with or into any other Restricted Subsidiary of Holdings that is not a Loan Party, (ii) any Restricted Subsidiary of Holdings (other than a the Lead Administrative Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower Holdings that is a Loan PartyParty (or, to the extent a Borrower shall be a party to any such merger, amalgamation or consolidation, a Borrower shall be a surviving or continuing entity), (iii) any merger or amalgamation the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States that is a Covered Loan Party Jurisdiction shall be permitted (provided that such Person and each of its Restricted Subsidiaries that is a Loan Party prior to such merger or amalgamation shall be a Loan Party after giving effect to such reincorporation or reorganization) and (iv) any Restricted Subsidiary of Holdings (other than a the Lead Administrative Borrower) may wind-up, liquidate or dissolve or change its legal form if the Parent Lead Administrative Borrower determines in good faith that such action is in the best interests of the Parent Borrower Loan Parties and its their Restricted Subsidiaries and is not materially disadvantageous to the Lenders; providedprovided that, in the case of clauses (ii) and through (iiiiv) of this Section 9.4(c), (A) no Event of Default would shall have occurred and be continuing or shall result therefromtherefrom and (B) the surviving or continuing Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be a Loan Party (in the case of any such transaction involving a Guarantor) or a Borrower (in the case of any such transaction involving a Borrower), the Equity Interest of whom shall be directly owned by one or more Loan Parties and pledged as Collateral pursuant to the terms of the Collateral Documents;
(cd) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower a Loan Party or another Restricted Subsidiary; provided that (i) no Event of Default shall have occurred and be continuing or shall result therefrom and (ii) if the transferor in such a transaction is a Loan Party, then (i1) the transferee must be a Loan Party or (ii2) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Payment permitted by Subsidiary which is not a Loan Party in accordance with Section 7.06 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 7.06(b)(xix)) or a Permitted Investment9.5;
(de) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any the Lead Administrative Borrower may merge merge, amalgamate or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Lead Administrative Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation Person or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving or continuing after any such merger merger, amalgamation or consolidation is not the Parent Lead Administrative Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws Laws of the United States, any state thereof, Local Covered Jurisdiction of the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary merging Lead Administrative Borrower, the Successor Subsidiary Borrower Equity Interests of which shall be an entity organized directly owned solely by one or existing under more Loan Parties and pledged as Collateral pursuant to the laws of: (x) in the case terms of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandCollateral Documents), (B) the such Successor Borrower shall expressly assume all the obligations of such the Lead Administrative Borrower under this Agreement and the other Credit Loan Documents to which such the Lead Administrative Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantorother Loan Party, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to this Agreement and the Swiss Guaranty Guaranty, confirmed that its guarantee Obligations (including its Guarantee of the Swiss Obligations Obligations) shall apply to the Successor Borrower’s obligations under this Agreement, and (D) each Loan Party, unless it is the other party to such Borrower merger, amalgamation 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) Holdings shall have delivered (or caused to be delivered) to the Administrative Agent an officer’s (1) a certificate and an opinion of counsel, each stating a Responsible Officer certifying that such merger merger, amalgamation or consolidation consolidation, and any such supplement to this Agreement or any Collateral Document delivered in connection with any such merger, amalgamation or consolidation, comply with this AgreementAgreement and (2) a customary opinion of counsel, including customary organization, due execution and authority, enforceability and attachment and perfection opinions and such other customary opinions as reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such the Lead Administrative Borrower under this AgreementAgreement and (F) the Administrative Agent shall have received, at least three (3) Business Days prior to such merger, amalgamation or consolidation, (1) all documentation and other information about the Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Proceeds of Crime Act, and (2) to the extent that any Successor Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification with respect to such Successor Borrower, in each case, that shall have been requested in writing at least ten (10) Business Days prior to the date of such merger, amalgamation or consolidation;
(ef) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary (other than the Lead Administrative Borrower) may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 9.2 (other than Section 7.06(b)(xix9.2(e)) or a Permitted Investment); provided that the continuing or surviving Person shall be the Parent a Borrower or a Restricted Subsidiary, which together with each of its their Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral Sections 8.11, 8.12 and Guarantee Requirement8.13; and
(fg) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 9.5 (other than Section 7.05(e9.5(e)). Any transaction permitted by any of Sections 9.4(a) through 9.4(g) made in reliance on an Specified Asset Disposition/Investment Provision shall be subject to compliance with Section 7.4(b).
Appears in 2 contracts
Sources: Credit Agreement (Signet Jewelers LTD), Credit Agreement (Signet Jewelers LTD)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) Neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary of the Parent Borrower may mergeto, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower merge into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that , or permit any other Person to merge into or consolidate with it, 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, (i) any Person may merge into or consolidate with the Borrower in a transaction in which the case of a merger or consolidation involving Borrower is the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower entity or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or entity (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ) (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity is organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) expressly assumes the Successor Borrower shall expressly assume all the Borrower’s obligations of such Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss each Subsidiary Borrower, each Swiss GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered each Subsidiary Loan Party, unless it is the other party to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such consolidation, shall have by a supplement to the Collateral Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or any Collateral Document comply with consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such the Borrower under this Agreement;
, (eii) so long as no Event any Person (other than the Borrower) may merge into or consolidate with any Subsidiary in a transaction in which the surviving entity is a Subsidiary and, if any party to such merger or consolidation is a Subsidiary Loan Party, is a Subsidiary Loan Party, (iii) any Subsidiary may merge into or consolidate with any Person (other than the Borrower) in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Subsidiary, (iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of Default has occurred the Borrower and is continuing or would result therefrom (in not materially disadvantageous to the case of a merger, amalgamation Lenders; provided that any such merger or consolidation involving a Loan Party)Person that is not a wholly owned Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04 and (v) Holdings, the Borrower or any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person engage in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, dissolution or liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.05 6.05.
(b) The Borrower will not, and Holdings and the Borrower will not permit any Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Subsidiaries on the date hereof and businesses reasonably related, incidental or ancillary thereto.
(c) Holdings will not engage in any business or activity other than the ownership of all the outstanding Equity Interests of the Borrower and activities incidental thereto and compliance with its obligations under the Loan Documents, the ABL Credit Agreement and the Senior Unsecured Notes Documents or any Refinancing Indebtedness in respect thereof. Holdings will not own or acquire any material assets (other than Equity Interests of the Borrower, cash and Permitted Investments) or incur any liabilities (other than liabilities under the Loan Documents or Guarantees permitted by Section 7.05(e6.01(b), liabilities imposed by law, including tax liabilities, and other liabilities incidental to its existence and permitted business and activities).
Appears in 2 contracts
Sources: Credit Agreement (Affinia Group Intermediate Holdings Inc.), Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Fundamental Changes. MergeThe Parent and the Borrower will not, dissolveand will not permit any other Loan Party to, liquidate, either (x) merge into or consolidate with or into another any other Person, or Dispose of permit any other Person to merge into or consolidate with it, or (whether in one transaction y) liquidate 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 Transactions)dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing and, in the event such merger or consolidation is in connection with an Investment (including a Permitted Acquisition), the Investment is permitted by Section 7.03:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate merge with or into the Parent, the Borrower or any other Restricted Subsidiary of Loan Party in a transaction in which the Parent Parent, the Borrower that is a Non-or such Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in as the case of clauses (ii) and (iii)may be, no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to is the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Personsurviving entity; provided that (i) in the case of a merger or consolidation involving the Parent Borrowerand the Borrower will not merge with or into each other and (ii) if the Parent or the Borrower merges with any other Loan Party, the Parent Borrower shall or the Borrower, as the case may be, must be the continuing surviving entity;
(b) any Person may merge with or surviving corporation and into the Parent, the Borrower or any other Loan Party in a transaction in which the Parent, the Borrower or such Loan Party, as the case of a merger involving may be, is not the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or entity; provided that (iii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity a corporation organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof and or, in the case of a merger or consolidation involving the Japanese Subsidiary Borrower or the Swiss Subsidiary BorrowerParent, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and jurisdiction in which the Parent is organized (y) in such Person being herein referred to as the case of the Swiss Subsidiary Borrower, Switzerland“Successor Entity”), (Bii) the Successor Borrower Entity shall expressly assume all the obligations of such the Parent, the Borrower or the applicable Loan Party, as the case may be, under this Agreement and the other Credit Loan Documents to which the Parent, the Borrower or such Borrower Loan Party, as applicable, is a party party, pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (Ciii) in if such merger or consolidation involves the case of any such transaction involving Swiss Subsidiary Borrower, then each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have (by a supplement to the Swiss Guaranty Agreement) confirmed that its guarantee of the Swiss Obligations Guarantee shall apply to all of the Successor BorrowerEntity’s obligations under this Agreement, and (Div) such Borrower if requested by the Administrative Agent, the Administrative Agent shall have delivered received an opinion of counsel reasonably satisfactory to the Administrative Agent an officer’s certificate to the effect that the applicable Loan Documents are legal, valid, binding and an opinion enforceable obligations of counsel, each stating that the Successor Entity and (v) this clause (b) shall not be construed to permit the Borrower to merge with or into the Parent. In the case of any such merger of the Parent or consolidation and such supplement to this Agreement or any Collateral Document comply the Borrower in accordance with this Agreement; provided, further, that if the foregoing are satisfiedclause (b) above, the Successor Borrower Entity shall be deemed to be the Parent or the Borrower, as applicable, for all purposes of the Loan Documents. Notwithstanding anything to the contrary herein, the Parent will succeed tonot engage, and be substituted forwill not permit the Borrower to engage, in any transaction that would reduce the percentage of Equity Interests owned by the Parent in the Borrower, except for (x) sales, transfers and other disposals of such Equity Interests to directors, officers or employees of the Borrower under this Agreement;
pursuant to any employee stock ownership plan or similar plan for the benefit of directors, officers or employees of the Borrower and (ey) so long the issuance of such Equity Interests as consideration for any acquisition from a third party; provided that following any such issuance of Equity Interests to a third party, no Event of Default has Change in Control shall have occurred and is continuing or would result therefrom (in the case majority of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 the seats (other than Section 7.06(b)(xix)vacant seats) or a Permitted Investment; provided that on the continuing or surviving Person board of directors of the Borrower shall be occupied by Persons nominated by the board of directors of the Borrower or the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) appointed by directors so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))nominated.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Willis Group Holdings LTD), Credit Agreement (Willis Group Holdings LTD)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent 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, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize not a Loan Party in another jurisdiction in the United States shall be permitted and (ivii) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or (ii) to Foreign Loan Party, as the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investmentcase may be;
(d) (i) so long as no Event of Default has occurred and is continuing exists or would result therefromtherefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, any the Parent Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Parent 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of such the Parent Borrower under this Agreement and the other Credit Loan Documents to which such the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss Obligations shall apply to the Successor Parent 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 each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, and (DF) such 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 Parent Borrower will succeed to, and be substituted for, such the Parent Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 2 contracts
Sources: Credit Agreement (Clear Channel Communications Inc), Credit Agreement (C C Media Holdings Inc)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or dispose of (whether in one transaction or in a series of 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 Transactions), except that:
(a1) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, and ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and
(c) in the case of a merger or consolidation of Holdings with and into the Borrower,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower,
(iii) no Event of Default exists at such time or after giving effect to such transaction and
(iv) after giving effect to such transaction, a direct parent of the Borrower will (A) 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 the Borrower and (B) pledge 100% of the Equity Interests of the Borrower held by such direct parent to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and the Borrower;
(ia) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party,
(b) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party, ; provided that a Loan Party shall be the continuing or surviving Person;
(iiic) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall will be permitted and permitted; and
(ivd) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, provided that in the case of clauses clause (ii) and (iiid), no Event the Person who receives the assets of Default would result therefromsuch dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or the definition of “Permitted Investments”;
(c3) any Restricted Subsidiary (other than a Borrower) may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d4) so long as no Event of Default has occurred and is continuing or would result therefrom, any the Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (iib) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ):
(i) the Successor Borrower will:
(A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, Columbia,
(B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent and the Borrower and
(C) in deliver to the case Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (II) an Opinion of any Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent;
(ii) substantially contemporaneously with such transaction involving Swiss Subsidiary Borrower, (or at a later date as agreed by the Administrative Agent),
(A) each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Swiss Guaranty confirmed (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guaranty of the Obligations (including the Successor Borrower’s obligations under this Agreement),
(B) each Loan Party, unless it is the other party to such merger or consolidation, will, by a supplement to the Security Agreement (or in another form reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder,
(C) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, will, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent and the Borrower), confirm that its guarantee of the Swiss Obligations obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement;
(iii) after giving pro forma effect to such incurrence, and the Borrower would be permitted to incur at least $1.00 of additional Permitted Ratio Debt; and
(Div) such Borrower shall have delivered to the extent reasonably requested by the Administrative Agent, the Administrative Agent an officer’s certificate shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and an opinion other information in respect of counselthe Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreementincluding the USA PATRIOT Act; provided, further, provided further that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred Agreement and is continuing or would result therefrom (in the case of a mergerthe disposition of all or substantially all assets, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall original Borrower will be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; andreleased;
(f5) so long as no Event of Default has occurred and is continuing or would result therefrom, Holdings may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) Holdings will be the continuing or surviving Person or (b) if:
(i) the Person formed by or surviving any such merger or consolidation is not Holdings,
(ii) Holdings is not the Person into which the applicable Person has been liquidated or
(iii) in connection with a disposition of all or substantially all of Holding’s assets, the Person that is the transferee of such assets is not Holdings (any such Person described in the preceding clauses (i) through (iii), a “Successor Holdings”), then the Successor Holdings will:
(A) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(B) 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 the Borrower,
(C) pledge 100% of the Equity Interests of the Borrower held by such Successor Holding Entity to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrower,
(D) if requested by the Administrative Agent, deliver, or cause the Borrower to deliver, to the Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this Agreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; and
(iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided further that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement and in the case of the disposition of all or substantially all assets, the original Holdings will be released;
(6) any Restricted Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other investment permitted pursuant to Section 7.05;
(7) a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Dispositiondisposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.05 7.04 or a disposition that does not constitute any Asset Sale (other than Section 7.05(ea transaction described in clause (b) of the definition of Asset Sale));
(8) the Borrower, Holdings and any Restricted Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name; and
(9) the Loan Parties and the Restricted Subsidiaries may consummate the Transactions.
Appears in 2 contracts
Sources: First Lien Credit Agreement (McAfee Corp.), First Lien Credit Agreement (McAfee Corp.)
Fundamental Changes. Merge, dissolve, liquidate, amalgamate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person Person, except that, (other than in the case of clause (e) below) so long as part no Event of the Transactions), except thatDefault would result therefrom:
(ai) any Restricted Subsidiary of the Parent Borrower Holdings Topco may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdictionjurisdiction in any State of the United States); provided that (x) the Parent Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower pursuant to documents reasonably acceptable to the Administrative Agent and the Borrower (or, if not the Borrower, the surviving Person, and (y) such merger shall be a corporation or consolidation does not result in the Parent Borrower ceasing to be a limited liability company organized under the Laws laws of the United States, any state thereof or the District of Columbia;
, (iii) any Restricted Subsidiary that is a Non-Loan Party of Holdings Topco (other than a the Borrower or any of the Borrower’s Restricted Subsidiaries) may merge, amalgamate or consolidate with or Holdings Topco (including a merger, the purpose of which is to reorganize Holdings Topco into a new jurisdiction in any other Restricted Subsidiary State of the Parent Borrower United States); provided that is Holdings Topco shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of Holdings Topco pursuant to documents reasonably acceptable to the Administrative Agent and Holdings Topco (or, if not Holdings Topco, the surviving Person) shall be a Non-Loan Party, (ii) any Restricted Subsidiary (other than corporation or a Borrower) may merge or consolidate with or into any other Restricted Subsidiary limited liability company organized under the laws of the Parent Borrower that is a Loan PartyUnited States, any state thereof or the District of Columbia, (iii) any merger Restricted Subsidiary of Holdings (other than the sole purpose Borrower or any of which is to reincorporate the Borrower’s Restricted Subsidiaries) may merge, amalgamate or reorganize a Loan Party in another jurisdiction in consolidate with any one or more other Restricted Subsidiaries of Holdings (other than the United States shall be permitted and Borrower or any of the Borrower’s Restricted Subsidiaries), or (iv) any Restricted Subsidiary of the Borrower may merge, amalgamate or consolidate with any one or more other Restricted Subsidiaries of the Borrower; provided that when any Guarantor is merging with another Restricted Subsidiary that is not a Loan Party (other than A) the Guarantor shall be the continuing or surviving Person, (B) to the extent constituting an Investment, such Investment must be a BorrowerPermitted Investment (without giving effect to clauses (17) and (18) thereof) or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with
Section 7.01 respectively and (C) to the extent constituting a Disposition, such Disposition must be permitted hereunder;
(b) any Restricted Subsidiary 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) change its legal form if the Parent Borrower determines in good faith that such action is in the best interests interest of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, Lenders in any material respect (it being understood that in the case of clauses (ii) 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 (iiiin 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), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another to any direct or indirect Restricted SubsidiarySubsidiary of the Borrower; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (i) the transferee must either be the Borrower or a Loan Party Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent and (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) Permitted Investment or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case Indebtedness of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Restricted Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation which is not the Parent Borrower (any such Persona Loan Party in accordance with Section 7.01, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreementrespectively; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreementmay Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Loan Party (other than Holdings);
(ed) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with with, or dissolve into, any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that (i) the continuing or surviving Person shall be shall, to the Parent Borrower or a Restricted Subsidiaryextent subject to the terms hereof, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.12, (ii) to the extent required under constituting an Investment, such Investment must be a Permitted Investment and (iii) to the Collateral and Guarantee Requirement; andextent constituting a Disposition, such Disposition must be permitted hereunder;
(e) [reserved];
(f) so long as no Event of Default has occurred and is continuing any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is into another Person in order to effect a Disposition permitted pursuant to Section 7.05 7.04 (other than Dispositions permitted by this Section 7.05(e7.03)); and
(g) any Permitted Investment may be structured as a merger, consolidation or amalgamation, so long as no Event of Default would result therefrom.
Appears in 2 contracts
Sources: Subordination Agreement (KLDiscovery Inc.), Subordination Agreement (KLDiscovery Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) Neither the Company nor any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate Person or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets to any Person unless (upon voluntary liquidation or otherwiseA) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred shall be continuing after giving effect to such transaction and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (iB)(x) in the case of a merger or consolidation involving the Parent Borrower, the Parent such Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation entity or (iiy)
(1) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Personconsolidation, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrowertransferee of such assets, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 or any territory thereof and (or, in the case of a merger involving any Subsidiary Borrower organized outside of the Japanese United States, the jurisdiction of incorporation of such Subsidiary Borrower or any other Foreign Subsidiary Borrower) that expressly assumes all the Swiss obligations of such Borrower under the Loan Documents pursuant to a supplement or amendment to the Loan Documents reasonably satisfactory to the Administrative Agent, (2) the Company and the Parent and, prior to the Collateral Release Date or 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 Successor Company may elect for such Subsidiary Borrower 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) Prior to the Collateral Release Date or during any Reinstated Guarantee Requirement Period, no 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 another 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: (x) in the case of the Japanese Subsidiary BorrowerUnited States, Japan and (y) in any state thereof, or the case District of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall Columbia that expressly assume assumes all the obligations of such Borrower Subsidiary Guarantor under this Agreement and the other Credit Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form amendment to each applicable Loan Document reasonably satisfactory to the Administrative Agent, (B) the Company, the Parent and each then-remaining Subsidiary Guarantor shall have reaffirmed its obligations under the Loan Documents and (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, Administrative Agent shall have by received an opinion of counsel (which may be internal counsel to a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (DLoan Party) such Borrower shall have delivered which is reasonably satisfactory 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, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied consistent with the applicable requirements of opinions delivered on the Closing Date with respect to such Subsidiary Guarantor, or (iii) in connection with an asset sale not prohibited by Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))7.5.
Appears in 2 contracts
Sources: Revolving Credit Agreement (General Motors Financial Company, Inc.), Revolving Credit Agreement (General Motors Co)
Fundamental Changes. Merge(a) No Loan Party will, nor will it permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or otherwise Dispose of all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, liquidateexcept that, consolidate 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 (other than the Borrower) may merge into or into another Personbe consolidated with, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets or the stock of any of its Subsidiaries to, the Borrower in a transaction in which the Borrower is the surviving entity or transferee, (whether now owned or hereafter acquiredii) to or in favor of any Person (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge into or consolidate with be consolidated with, or into Dispose of all or substantially all of its assets or the stock of any of its Subsidiaries to, any other Restricted Subsidiary of Loan Party in a transaction in which the Parent Borrower that surviving entity or transferee is a Loan Party, and if any such Loan Party is a Domestic Subsidiary, such Domestic Subsidiary shall be the surviving entity or transferee, (iii) any merger the sole purpose of which Subsidiary that is to reincorporate or reorganize not a Loan Party in another jurisdiction in may merge into or be consolidated with any other Subsidiary, provided that Domestic Subsidiaries may not merge into Foreign Subsidiaries unless the United States shall be permitted and Domestic Subsidiary is the surviving entity, (iv) any Restricted Subsidiary may merge into or be consolidated with a Person that is not a Loan Party if after giving effect to such merger, such Person becomes a wholly-owned Subsidiary of the Borrower and a Loan Party, provided that no Domestic Subsidiary may merge into a Foreign Subsidiary unless the Domestic Subsidiary is the surviving entity, (other than a Borrowerv) any Subsidiary may liquidate into the Borrower or any other Subsidiary or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; providedprovided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04. Anything in this Section to the contrary notwithstanding, in no event may the case Borrower or a Domestic Subsidiary merge into or be consolidated with a Foreign Subsidiary, unless the Borrower or Domestic Subsidiary is the surviving entity.
(b) No Loan Party will, nor will it permit any Subsidiary to, engage in any business other than businesses of clauses (ii) the type conducted by the Borrower and (iii)its Subsidiaries on the Effective Date and any business activities that are substantially similar, no Event of Default would result therefrom;related or incidental thereto, including cloud services.
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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 No Loan Party will, nor will it permit any Subsidiary to change its fiscal year or (ii) to any fiscal quarter from the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;basis in effect on the Effective Date.
(d) so long No Loan Party will change the accounting basis upon which its financial statements are prepared, other than due to changes required by GAAP or any Requirement of Law.
(e) No Loan Party will, nor will it permit any Subsidiary to, consummate a Division as no Event the Dividing Person, without the prior written consent of Default has occurred the Administrative Agent (at the direction of the Required Lenders). Without limiting the foregoing, if any Loan Party that is a limited liability company consummates a Division (with or without the prior consent of Lender as required above), each Division Successor shall be required to comply with the obligations set forth in Section 5.14 and is continuing or would result therefrom, any Borrower may merge or consolidate with any the other Person; provided that (i) further assurances obligations set forth in the case of Loan Documents and become a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower Loan Party under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))Documents.
Appears in 2 contracts
Sources: Subordinated Credit Agreement (F45 Training Holdings Inc.), Subordinated Credit Agreement (F45 Training Holdings Inc.)
Fundamental Changes. Merge, dissolve, liquidatereorganize, consolidate or amalgamate 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 Transactionsincluding pursuant to a Delaware LLC Division), except that:
, so long as no Default then exists hereunder or would be caused thereby and Administrative Agent receives written notice of any such merger, consolidation or amalgamation, within 30 days (or such longer period as may be acceptable to Administrative Agent) of the effectiveness thereof if such merger, consolidation or amalgamation involves an Obligor, (i) Parent or any Restricted Subsidiary of Parent may merge into, consolidate or amalgamate with any other Restricted Subsidiary of Parent or any other Person, but only if (a) the Person surviving such merger, consolidation or amalgamation, or the Person formed by or continuing following such consolidation or amalgamation, shall be Parent or a Restricted Subsidiary of Parent, and (b) if an Obligor is a party to such merger, amalgamation or consolidation and the surviving or continuing Person of any such merger, consolidation, or amalgamation is not an Obligor, the surviving or continuing Person formed by, or continuing from, such merger, amalgamation, or consolidation, as the case may be, shall assume, in a manner reasonably satisfactory to Administrative Agent, the obligations of such Obligor under the Loan Documents to which such Obligor was a party, and Administrative Agent shall receive the documents required to be delivered pursuant to Section 6.5, Section 9.1.8 or Section 9.1.9 hereof; (ii) any Subsidiary that is not a Restricted Subsidiary may merge into or consolidate or amalgamate with any other Subsidiary so long as if an Obligor is a party to such merger, amalgamation or consolidation and the surviving or continuing Person of any such merger, consolidation, or amalgamation is not an Obligor, the surviving or continuing Person formed by such merger, amalgamation, or consolidation, as the case may be, shall assume, in a manner reasonably satisfactory to Administrative Agent, the obligations of such Obligor under the Loan Documents to which such Obligor was a party, and Administrative Agent receives the documents required to be delivered pursuant to Section 6.5, Section 9.1.8 or Section 9.1.9 hereof, (iii) any Restricted Subsidiary may merge into, consolidate or amalgamate with any other Restricted Subsidiary of the Parent Borrower or any other Person in connection with a Permitted Acquisition and (iv) any Restricted Subsidiary may mergeconsummate a Delaware LLC Division (or comparable division under other Applicable Law) if, amalgamate immediately upon or consolidate contemporaneously with the Parent Borrower (including a mergerconsummation of such Delaware LLC Division or comparable division, the purpose assets of which is such dividing Restricted Subsidiary are held by one or more Restricted Subsidiaries at such time or, with respect to reorganize assets not so held by one or more Restricted Subsidiaries, such Delaware LLC Division or comparable division, in the Parent Borrower into aggregate, would otherwise result in a new jurisdictiondisposition permitted by Section 9.2.8 (other than clause (v) thereof); provided that (x) if the dividing Restricted Subsidiary is an Obligor, then any successor entity shall become an Obligor to the extent required by and in accordance with Section 9.1.8. Parent Borrower shall be the continuing or surviving Personnot, and (y) such merger shall not permit any Restricted Subsidiary to, liquidate, wind up its affairs or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United Statesdissolve itself or otherwise wind up its business, any state thereof or the District of Columbia;
except (i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change wind up its legal form affairs or business if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) are transferred to the Parent Parent, a Borrower or another Restricted Subsidiary; provided that if the transferor Subsidiary and/or sold or otherwise transferred in such a transaction is a Loan Partypermitted by Section 9.2.8 hereof and the net proceeds thereof are delivered to an Obligor or another Restricted Subsidiary, then (i) the transferee must be a Loan Party or and (ii) any Immaterial Subsidiary may liquidate or dissolve or wind up its affairs or business if all of its assets are transferred to the extent constituting an Investmentanother Immaterial Subsidiary, such Investment must be Parent, a Borrower or another Restricted Payment Subsidiary and/or sold or otherwise transferred in a transaction permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom9.2.8 hereof and, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrowerunless transferred to an Immaterial Subsidiary, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 net proceeds thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have are 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, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower Obligor or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, . Nothing in this Section 9.2.1 shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, prohibit a merger, consolidation, amalgamation, dissolution, liquidationreorganization, consolidation or Disposition, amalgamation that is solely for the purpose of which is selecting an alternate jurisdiction or form of organization, and if a Borrower shall have given notice within 30 days after such merger, reorganization, consolidation or amalgamation to effect Administrative Agent and shall have taken such actions as Administrative Agent may reasonably request to assume all Obligations and maintain the perfection and priority of any Liens of Administrative Agent that would otherwise be adversely affected thereby. No Obligor shall, nor permit any Subsidiary to, change its name, FEIN, Organizational I.D. Number, Tax Reference or Employer PAYE Reference, change any Canadian Obligor’s domicile or location of chief executive office or change any UK Obligor’s centre of main interests unless, in each such case, a Disposition permitted pursuant Borrower shall have given notice within 30 days after such change to Section 7.05 (other than Section 7.05(e))Administrative Agent and shall have taken such action as Administrative Agent may reasonably request to maintain the perfection and priority of any Liens of Administrative Agent that would otherwise be adversely affected thereby.
Appears in 2 contracts
Sources: Loan and Security Agreement (Sunbelt Rentals Holdings, Inc.), Loan and Security Agreement (Sunbelt Rentals Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate Consolidate with or into another Personmerge with or into, or sell, convey, assign, lease, transfer or otherwise 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 Transactions)Person, except thatunless:
(a) any Restricted Subsidiary of With regards to the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;Borrower,
(i) any Restricted Subsidiary that is a Non-Loan Party the resulting, surviving or transferee Person (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”)) will expressly assume, (A) in by an assumption agreement, executed and delivered to the case of a merger involving the Parent BorrowerAdministrative Agent, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, all the obligations of the Borrower hereunder;
(Cii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Borrower or any Subsidiary of the Successor Borrower as a result of such transaction as having been Incurred by the Successor Borrower or such Subsidiary at the time of such transaction), no Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, either (x) the Fixed Charge Coverage Ratio for the Obligor Group and such Successor Borrower would be less than 2.50 to 1.00 or (y) the Fixed Charge Coverage Ratio for the Obligor Group and such Successor Borrower would be lower than it was immediately prior to giving effect to such transaction;
(iv) the Liens of the Administrative Agent on the assets of the Borrower and in the case Capital Stock of the Borrower will not be adversely affected by any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is transaction; and
(v) the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officerOfficer’s certificate Certificate and an opinion of counselin form and substance reasonably satisfactory to the Administrative Agent, each stating to the effect that such consolidation, merger or consolidation and such supplement to this Agreement or any Collateral Document comply transfer complies with this Agreement; provided, further, that if the foregoing are satisfied. For purposes of this Section 7.04(a), the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Borrower, which properties and assets, if held by the Borrower instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Borrower on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Borrower. The Successor Borrower will succeed to, and be substituted for, such and may exercise every right and power of, the Borrower hereunder but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Agreement;
. Notwithstanding the foregoing clauses (eii) and (iii) (which do not apply to transactions referred to in this sentence), (a) any Restricted Subsidiary (other than the Borrower) may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary (other than the Borrower). Notwithstanding the preceding clauses (ii) and (iii) (which do not apply to the transactions referred to in this sentence), the Borrower may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Borrower, reincorporating the Borrower in another jurisdiction, or changing the legal form of the Borrower so long as the amount of Indebtedness is not increased thereby. The foregoing provisions (other than the requirements of the foregoing clause (ii)) shall not apply to the formation or organization of a new Subsidiary as a Restricted Subsidiary.
(b) With regards to the Guarantors,
(i) the other Person is the Borrower or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction; or
(ii) (x) either (1) a Guarantor is the continuing Person or (2) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor hereunder; and (y) immediately after giving effect to the transaction, no Event of Default has occurred and is continuing continuing; or
(iii) the transaction constitutes a sale or would result therefrom other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in the each case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that to the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition otherwise permitted pursuant to Section 7.05 (other than Section 7.05(e))by this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Igate Corp), Credit Agreement (Igate Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that, so long as no Default exists or Dispose of would result therefrom, (whether in one transaction i) any Person may merge with or into, consolidate with or amalgamate with the Borrower in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or transaction in favor of any Person (other than as part of which the Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Person (other than Parent Guarantor) may merge with or into, consolidate with or amalgamate with any Subsidiary (other than a the Borrower) may merge in a transaction in which the continuing or consolidate with or into any other Restricted surviving Person shall be a Subsidiary of the Parent Borrower that is a Loan PartyBorrower, (iii) any merger Subsidiary of the sole purpose of which is Borrower may merge with or into, consolidate with or amalgamate with any Person in order to reincorporate consummate an Investment permitted by Section 7.02 or reorganize a Loan Party in another jurisdiction in the United States shall be Disposition permitted and by Section 7.05; (iv) any Restricted Subsidiary of the Borrower may merge into, the Parent Guarantor, the Borrower or any other Subsidiary of the Borrower; and (other than a Borrowerv) any Subsidiary of the Borrower may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided. For the avoidance of doubt, in the case of clauses connection with an internal restructuring, (iix) and (iii)DOC OP may merge, no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of consolidate or amalgamate with or into, or distribute or transfer all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Partyto, then (i) the transferee must be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower DOC or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) DOC may merge, consolidate or amalgamate with or into, or distribute or transfer all or substantially all its assets to, the Borrower, it being understood and agreed that, in the case of event the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall successor or transferee entity in any such transaction expressly assume all assumes the obligations of DOC OP under any DOC Debt, such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory assumption shall be permitted notwithstanding anything to the Administrative Agent, (C) contrary in the case this Article VII and shall not constitute a new incurrence of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this AgreementIndebtedness for purposes Section 7.03; provided, further, that if the foregoing are satisfiedprovided that, the Successor Borrower will succeed to, and be substituted for, Loan Parties shall provide such Borrower under this Agreement;
(e) so long customary “know your customer” documentation as no Event of Default has occurred and is continuing or would result therefrom (the Lenders may reasonably require in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate connection with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))such transfer.
Appears in 2 contracts
Sources: Term Loan Agreement (Healthpeak Properties, Inc.), Credit Agreement (Healthpeak Properties, Inc.)
Fundamental Changes. Merge(a) The Parent will not, dissolveand will not permit any of its Subsidiaries to, liquidate, merge into or consolidate with or into another any other 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) permit any other Person to or in favor of any Person (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge into or consolidate with the Parent Borrower (including a mergerit, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction)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, (xi) Parent may merge with a Person in connection with a Permitted Acquisition so long as a Parent is the Parent Borrower shall be the continuing or surviving Person, and (yii) a Borrower may merge with a Person in connection with a Permitted Acquisition so long as a Borrower is the surviving Person, (iii) any wholly owned Subsidiary may merge into or consolidate with another wholly owned Subsidiary, provided that if any party to such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, a Loan Party shall be the surviving Person, (iiiv) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, (v) any Subsidiary of the Parent which is not a Borrower may merge into or consolidate with any Person in a transaction permitted under Section 7.6 in which after giving effect to such transaction, the case of clauses (ii) surviving entity is not a Subsidiary and (iii), no Event of Default would result therefrom;
(cvi) any Restricted Subsidiary (other than which is not a Borrower) Borrower may Dispose liquidate or dissolve after the transfer of all or substantially all of its assets (upon voluntary to another Loan Party in a transaction permitted under Section 7.6 if the Parent determines in good faith that such liquidation or otherwise) to dissolution is in the best interest of the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation its Subsidiaries and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating determines that such merger liquidation or consolidation dissolution is not materially disadvantageous to the Lenders.
(b) The Parent will not, and such supplement to this Agreement or will not permit any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed of its Subsidiaries to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (engage in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (business other than Section 7.06(b)(xix)) or a Permitted Investment; provided that businesses of the continuing or surviving Person shall be type conducted by the Parent Borrower or a Restricted Subsidiary, which together with each of and its Restricted Subsidiaries, shall have complied with Subsidiaries on the applicable requirements of Section 6.11 to the extent required under the Collateral date hereof and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))businesses reasonably related thereto.
Appears in 2 contracts
Sources: Credit Agreement (Tessco Technologies Inc), Credit Agreement (Tessco Technologies Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the TransactionsTransaction), except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall not be an obligor in respect of any Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Parent Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent 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;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a the Parent Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), (A) no Event of Default would shall result therefromtherefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Loan Party) shall be a Loan Party;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix7.06(b)(xviii)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any the Parent Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Parent Borrower under this Agreement and the other Credit Loan Documents to which such the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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 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) 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 this Agreement, and (DF) such 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 Borrower will succeed to, and be substituted for, such the Parent Borrower under this Agreement;
(e) so long as no Event Default has occurred and is continuing or would result therefrom, Holdings may merge or consolidate with any other Person; provided that (i) Holdings shall be the continuing or surviving Person or (ii) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”), (A) the Successor Holdings 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 Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) 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 Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(f) so long as no Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix7.06(b)(xviii)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to 6.11;
(g) the extent required under Merger, related transactions contemplated by the Collateral Merger Agreement (and Guarantee Requirementdocuments related thereto) and the Transaction may be consummated; and
(fh) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 2 contracts
Sources: Credit Agreement (Par Pharmacuetical, Inc.), Credit Agreement (Par Pharmacuetical, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, The Borrower will not consolidate with or into another Personmerge with or into, or Dispose transfer all or substantially all, or any substantial portion, of (whether its properties and assets to one or more Persons in one transaction or in a series of related transactionstransactions unless (i) if the Borrower is the surviving entity in any such consolidation or merger, after giving effect to such transaction, there would not exist any Default or Event of Default hereunder, (ii) if the Borrower is not the surviving entity in any such consolidation or merger, each of the Lenders (or in the case of any such consolidation or merger which is in the nature of an internal corporate reorganization of only the Borrower and its Subsidiaries and does not, in the reasonable judgment of the Required Lenders affect, in any material respect, the creditworthiness of the Borrower, the Required Lenders) consents to such consolidation or merger in advance or (iii) if the Borrower transfers all or substantially all, or any substantial portion, of its properties and assets, the transferee or transferees thereto are wholly owned Subsidiaries (except the transferee or transferees of any substantial portion of its properties and assets, but not 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)properties and assets, except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall not be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing required to be organized under wholly owned Subsidiaries if the Laws of transfer is for fair consideration as reasonably determined by the United States, Borrower) and any state thereof or the District of Columbia;
(i) any Restricted Subsidiary such transferee that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted domestic Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is becomes a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party Guarantor hereunder pursuant to a supplement hereto or thereto Joinder Agreement substantially in the form reasonably satisfactory to of Exhibit D (it being understood that the Borrower and the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee on behalf of the Swiss Obligations shall apply Lenders, may agree to amendments hereto solely to provide for such guarantor arrangements as it may reasonably determine are necessary or useful). For the Successor Borrower’s obligations under purposes of this AgreementSection, and (D) such “Subsidiary” of the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion include any partnership, limited liability company or other entity of counsel, each stating that such merger which shares of stock 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, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 ownership interests having ordinary voting power (other than Section 7.06(b)(xix)stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or a Permitted Investment; provided that other managers thereof are at the continuing time owned, or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose management of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))otherwise controlled, directly or indirectly through one or more intermediaries, or both, by the Borrower.
Appears in 2 contracts
Sources: Credit Agreement (McGraw-Hill Companies Inc), 364 Day Credit Agreement (McGraw-Hill Companies Inc)
Fundamental Changes. Merge, dissolve, liquidate, recapitalize, 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 Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, :
(a) any Borrower or Significant Subsidiary that is a Loan Party may merge or consolidate with any other PersonDomestic Subsidiary; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall such Loan Party will be the continuing or surviving corporation Person; or (ii) if such Loan Party is not the continuing or surviving Person, then (A) such Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation and in (B) concurrently with the case effectiveness of a such merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrowerconsolidation, the Japanese continuing or surviving Domestic Subsidiary Borrower will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the Swiss provisions of the Loan Documents after giving effect to such merger or consolidation;
(b) any Significant Subsidiary Borrower shall may merge or consolidate with (i) any Loan Party, provided that (A) such Loan Party will be the continuing or surviving corporation Person or (B) if such Loan Party is not the continuing or surviving Person, then (1) such Subsidiary will be a Domestic Subsidiary, (2) the Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation and (3) concurrently with the effectiveness of such merger or consolidation, such Domestic Subsidiary will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the provisions of the Loan Documents after giving effect to such merger or consolidation; (ii) any one or more other Domestic Subsidiaries that is not a Loan Party, provided that if any merger or consolidation of two such Domestic Subsidiaries which are not Loan Parties results in the creation of a Material Subsidiary, such resulting Subsidiary will be subject to Section 6.12; or (iii) any Foreign Subsidiary; provided that such merging or consolidating Subsidiary is not a Loan Party;
(c) reserved;
(d) in connection with any Permitted Acquisition, any Significant Subsidiary may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided that (i) the Person surviving such merger will be a directly or indirectly wholly-owned Subsidiary of a Borrower and (ii) in the case of any such merger to which any Loan Party is a merger involving party, (A) such Loan Party is the Parent Borrowersurviving Person, or (B) if such Loan Party is not the surviving Person, then (1) such surviving Person formed by or surviving will be a Domestic Subsidiary, (2) the Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation is not and (3) concurrently with the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case effectiveness of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not consolidation, such Borrower (any surviving Person will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such surviving Person, the “Successor Subsidiary Borrower” and each ’s assumption of all of the Successor Parent Borrower Obligations of such merging or consolidating Loan Party and to comply with the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws provisions of the United States, any state thereof, Loan Documents (including the District requirements of Columbia Section 6.12) after giving effect to such merger or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: consolidation; and
(x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (Be) the Successor Borrower shall expressly assume all the obligations liquidation or dissolution of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agentany Subsidiary; provided that, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it that is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted (i) the Borrowers provide written notice to Administrative Agent at least ten days prior to the effectiveness of such liquidation or dissolution and (ii)(A) all assets and property of such Subsidiary may merge, amalgamate is transferred to another Loan Party or consolidate with any other Person in order (B) if such assets and property are transferred to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted another Subsidiary, which together (1) such recipient Subsidiary is a Domestic Subsidiary and (2) if such transfer of assets and property to such recipient Subsidiary results in the creation of a Material Subsidiary, upon the effectiveness of such transfer of assets or property the Borrowers will comply with each of its Restricted Subsidiaries, shall have complied Section 6.12 with the applicable requirements of Section 6.11 respect to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))such recipient Subsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Ch2m Hill Companies LTD), Credit Agreement (Ch2m Hill Companies LTD)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve (including, in each case, pursuant to a Delaware LLC Division) 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 Transactions), except that:
(a1) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, merger the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, and ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia, and
(c) in the case of a merger or consolidation of Holdings with and into the Borrower,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower,
(iii) no Event of Default exists at such time or after giving effect to such transaction, and
(iv) after giving effect to such transaction, a direct parent of the Borrower will (I) 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 the Borrower and (II) pledge 100% of the Equity Interests of the Borrower held by such direct parent to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and the Borrower;
(ia) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party;
(b) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party, ; provided that a Loan Party shall be the continuing or surviving Person;
(iiic) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party or Restricted Subsidiary in another jurisdiction in the United States shall will be permitted and permitted; and
(ivd) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, provided that in the case of clauses clause (iid) and (iii)above, no Event the Person who receives the assets of Default would result therefromsuch dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05;
(c3) any Restricted Subsidiary (other than a Borrower) may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in any such a transaction disposition (upon voluntary liquidation or otherwise) by any Loan Party to any Restricted Subsidiary that is a Loan Party, then (i) the transferee must be not a Loan Party or (ii) to the extent constituting an Investment, such Investment must shall otherwise be a Restricted Payment permitted by under Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment7.05;
(d4) so long as no Event of Default has occurred and is continuing or would result therefrom, any the Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation Person or (iib) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ):
(Ai) in the case of a merger involving the Parent Borrower, the Successor Borrower shall will:
(I) be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: Columbia,
(xII) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, and
(III) deliver to the Administrative Agent (A) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (B) to the extent reasonably requested by the Administrative Agent, an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions;
(Cii) in the case of any substantially contemporaneously with such transaction involving Swiss Subsidiary Borrower, (or at a later date as agreed by the Administrative Agent),
(I) each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Swiss Guaranty confirmed that (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its guarantee Guaranty of the Swiss Obligations shall apply to (including the Successor Borrower’s obligations under this Agreement),
(II) each Loan Party, and unless it is the other party to such merger or consolidation, will, by a supplement to the Security Agreement (D) such Borrower shall have delivered or in another form reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder;
(iii) after giving pro forma effect to such incurrence, the Borrower would be permitted to incur at least $1.00 of additional Permitted Ratio Debt; and
(iv) to the extent reasonably requested by the Administrative Agent an officer’s certificate or the Priority Revolving Agent, the Administrative Agent or the Priority Revolving Agent, as applicable, shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and an opinion other information in respect of counselthe Successor Borrower (including, each stating that such merger or consolidation if the Successor Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect of the Successor Borrower) required under applicable “know your customer” and such supplement to this Agreement or any Collateral Document comply with this Agreementanti-money laundering rules and regulations, including the USA PATRIOT Act; provided, further, provided further that if the foregoing are satisfied, the Successor Borrower B▇▇▇▇▇▇▇ will succeed to, and be substituted for, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred Agreement and is continuing or would result therefrom (in the case of a mergerthe disposition of all or substantially all assets, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall original Borrower will be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; andreleased;
(f5) so long as no Event of Default has occurred and is continuing or would result therefrom, Holdings may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) Holdings will be the continuing or surviving Person or (b) if:
(i) the Person formed by or surviving any such merger or consolidation is not Holdings,
(ii) Holdings is not the Person into which the applicable Person has been liquidated, or
(iii) in connection with a disposition of all or substantially all of Holding’s assets, the Person that is the transferee of such assets is not Holdings (any such Person described in the preceding clauses (i) through (iii), a “Successor Holdings”), then the Successor Holdings will:
(I) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(II) 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 the Borrower,
(III) pledge 100% of the Equity Interests of the Borrower held by such Successor Holdings to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrower,
(IV) if requested by the Administrative Agent, deliver, or cause the Borrower to deliver, to the Administrative Agent (A) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this Agreement and (B) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; and
(iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided further that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement and in the case of the disposition of all or substantially all assets, the original Holdings will be released;
(6) any Restricted Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other Investment permitted pursuant to Section 7.05;
(7) a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Dispositiondisposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.05 7.04 or a disposition that does not constitute any Asset Sale (other than Section 7.05(e))a transaction described in clause (b) of the definition of Asset Sale) shall be permitted;
(8) the Borrower, Holdings and any Restricted Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name;
(9) the Loan Parties and the Restricted Subsidiaries may consummate the Transactions and the Healthsmart Transactions; and
(10) (i) the formation, dissolution, liquidation or disposition of any Subsidiary that is a Divided LLC and (ii) any disposition to effect the formation of any Subsidiary that is a Divided LLC which disposition is not otherwise prohibited hereunder shall be permitted; provided that in each case upon formation of a Divided LLC, the Borrower complies with Section 6.11 with respect to such Divided LLC to the extent applicable.
Appears in 1 contract
Sources: First Lien Credit Agreement (Convey Health Solutions Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) The Borrower will not, and will not permit any Restricted Subsidiary of the Parent Borrower may mergeto, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower merge into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that , or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except 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) any Person may merge into or consolidate with the Borrower in a transaction in which (x) the case Borrower is the surviving entity or (y) the other party is the surviving entity of a such merger or consolidation involving the Parent Borrower(in such event, the Parent Borrower such surviving entity shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ) so long as (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity is organized or existing under the laws of the United States, any state thereof, the District States of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandAmerica, (B) the Successor Borrower shall expressly assume all assumes the Borrower’s obligations of such Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto thereto, as applicable, in form and substance reasonably satisfactory to the Administrative Agent, (C) the Successor Borrower shall deliver to the Administrative Agent and each Lender (1) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been reasonably requested by the Administrative Agent or such Lender and (2) if the Successor Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Administrative Agent and each Lender shall have received, to the extent reasonably requested by the Administrative Agent or such Lender, a Beneficial Ownership Certification in respect of the case of any such transaction involving Swiss Successor Borrower and (D) each Subsidiary Borrower, each Swiss GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty Collateral Agreement and, if reasonably requested by the Administrative Agent, each other Security Document to which such Subsidiary Loan Party is a party confirmed that its guarantee of the Swiss Obligations obligations thereunder shall apply to the Successor Borrower’s obligations under this AgreementAgreement (it being understood that, and if the foregoing conditions in clauses (A) through (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, then the Successor Borrower will automatically succeed to, and be substituted for, such the Borrower under this Agreement;
), (eii) so long as no Event of Default has occurred and any Person (other than the Borrower) may merge into or consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is continuing or would result therefrom (in the case of a mergerRestricted Subsidiary and, amalgamation if any party to such merger or consolidation involving is a Subsidiary Loan Party), the surviving entity is or becomes a Subsidiary Loan Party, (iii) any Restricted Subsidiary may merge, amalgamate merge into or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than the Borrower) in a transaction permitted under Section 7.06(b)(xix)) or a Permitted Investment; provided that 6.05 in which, after giving effect to such transaction, the continuing or surviving Person shall be the Parent Borrower or entity is not a Restricted Subsidiary, which together with each and (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution or change in legal form is in the best interests of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 Borrower and is not materially disadvantageous to the extent required under Lenders; provided that any such liquidation, dissolution or change involving a Person that is not a wholly-owned Restricted Subsidiary immediately prior to such liquidation, dissolution or change shall not be permitted unless it is also permitted by Section 6.04; provided, further, that in connection with any such liquidation or dissolution of a Loan Party, the Collateral and Guarantee Requirement; andassets of such Loan Party shall be transferred to another Loan Party.
(fb) so long as no Event of Default has occurred The Borrower will not, and is continuing or would result therefromwill not permit any Restricted Subsidiary to, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is engage to effect a Disposition permitted pursuant to Section 7.05 (any material extent in any business other than Section 7.05(e))businesses of the type conducted by the Borrower and the Restricted Subsidiaries on the Effective Date and businesses reasonably related, complementary or ancillary thereto or a reasonable extension or expansion thereof as determined by the Borrower in good faith.
Appears in 1 contract
Fundamental Changes. MergeThe Parent and the Borrower will not, dissolve, liquidate, and will not permit any Subsidiary to:
(a) merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its the assets of the Borrower or all or substantially all of the stock of the Borrower’s Subsidiaries taken as whole (in each case, whether now owned or hereafter acquired) to ), or liquidate or dissolve (including, in favor each case of any Person (other than as part of the Transactionsforegoing, pursuant to a Series LLC Division), except that:
(a) any Restricted Subsidiary of , if at the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower time thereof and immediately after giving effect thereto no Default shall have occurred and be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) Person may mergemerge into, amalgamate or consolidate with with, Borrower or into any other Restricted Subsidiary of the Parent in a transaction in which Borrower that or the Parent is a Non-Loan Party, the surviving entity; (ii) any Restricted Subsidiary (other than Person not a Borrower) Credit Party may merge into, or consolidate with, any Subsidiary in a transaction in which the surviving entity (or each surviving entity with or into any other Restricted Subsidiary of the Parent Borrower that respect to a Series LLC Division) is a Loan PartySubsidiary, (iii) any merger Subsidiary not a Credit Party may sell, transfer, lease or otherwise dispose of its assets to the sole purpose of which is Borrower or to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and Subsidiary, (iv) any Restricted Subsidiary not a Credit Party may (other than a BorrowerA) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses or (iiB) merge with a third party, (v) any Subsidiary which is a Credit Party may merge into (or consolidate with) or liquidate or dissolve into, any other Subsidiary which is a Credit Party, and (iii)vi) any Subsidiary which is a Credit Party may sell, no Event transfer, lease or otherwise dispose of Default would result therefrom;its assets to Borrower or to any other Subsidiary which is a Credit Party.
(b) sell, transfer, lease or otherwise dispose of any of its assets to a Person other than pursuant to clause (a) above if the Value of the assets disposed of in any twelve (12) month period exceeds twenty-five percent (25%) of Total Asset Value of the Borrower, unless not less than ten (10) Business Days prior to any such disposition Borrower delivers to Administrative Agent a Compliance Certificate and Borrowing Base Certificate evidencing compliance with all terms and conditions set forth therein.
(c) enter into any Restricted Subsidiary merger (other than a Borrowerthe 2019 Merger) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent in which Borrower or another Restricted Subsidiary; Guarantor will not be the surviving entity or which would result in a Change in Control, and provided in each instance that if the transferor in Lenders have received all “know your customer” and other information as the Lenders may reasonably request with respect to 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 Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;merger.
(d) so long as no Event engage to any material extent in any business other than the ownership, development, operation and management of Default has occurred office, industrial, manufacturing, warehouse, distribution or educational properties (or mixed uses thereof) and is continuing businesses reasonably related or would result therefromancillary thereto without the prior written consent of the Lenders. For the avoidance of doubt, any Borrower Subsidiary, including any Subsidiary Guarantor, may merge change or consolidate with any other Person; provided that (i) in the case of convert its status as a merger or consolidation involving the Parent Borrowerlimited liability company, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrowerlimited partnership, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of other registered business organization form to become a merger involving the Parent Borrowerlimited liability company, if the Person formed by limited partnership, corporation or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).registered business organization form
Appears in 1 contract
Fundamental Changes. MergeExcept as expressly permitted by Section 7.2 (other than clause (xv) thereof) or Section 7.5B, dissolveHoldings and the Borrower will not, nor will they permit any Subsidiary Guarantor 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 Dispose convey, sell, lease, assign, transfer or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its business units, assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)properties, except that:
(ai) any Restricted Subsidiary of Holdings or any other Person may be merged, amalgamated or consolidated with or into the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction)Holdings; provided that (xa) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyHoldings, then (i) the transferee must be a Loan Party or (ii) to the extent constituting an Investmentas applicable, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and or, in the case of a merger involving merger, amalgamation or consolidation with or into the Japanese Subsidiary Borrower or the Swiss Subsidiary BorrowerHoldings, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not (if other than the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary BorrowerHoldings, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (Aas applicable) in the case of a merger involving the Parent Borrower, 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 and and, in the case of a merger involving merger, amalgamation or consolidation with or into Holdings, Canada or any province thereof (the Japanese Subsidiary Borrower, Holdings or such Person, as the case may be, being herein referred to as the “Successor Borrower” or “Successor Holdings”, as applicable); provided that if the Successor Borrower is not the Borrower or the Swiss Subsidiary BorrowerSuccessor Holdings is not Holdings, then Holdings or Successor Holdings, as applicable, would be in compliance with Section 2.4A(iii)(b) on a Pro Forma Basis after giving effect thereto as of the last day of the most recent Fiscal Quarter for which Section 6.1 Financials have been or were required to be delivered (if, on a Pro Forma Basis, the Successor Subsidiary Borrower Capitalization Ratio as of the last day of such Fiscal Quarter would have resulted in a Borrowing Base Trigger Event (for this purpose only, any increase in the Consolidated Total Debt since the last day of such Fiscal Quarter shall be an entity organized or existing under deemed to have occurred on the laws of: (x) in the case last day of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandsuch Test Period)), (Bb) the Successor Borrower or Successor Holdings shall (x) expressly assume all the obligations of such the Borrower or Holdings, as applicable, under this Agreement and the other Credit Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative AgentAgent and (y) have provided to (1) the Administrative Agent and the Lenders at least thirty (30) days’ prior notice of such merger, amalgamation or consolidation and (2) the Administrative Agent any “know your customer” information relating to such Successor Borrower or Successor Holdings reasonably required by the Administrative Agent or any Lender and such information shall be satisfactory to the Administrative Agent and the Lenders, (Cc) 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 or Holdings, then Holdings or Successor Holdings, as applicable, 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 (for this purpose only, any increase in the case Revolving Loan Exposure since the last day of any such transaction involving Swiss Fiscal Quarter shall be deemed to have occurred on the last day of such Fiscal Quarter)), (e) each Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger merger, amalgamation or consolidationconsolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations Guaranty shall apply to the Successor Borrower’s obligations under this Agreement), and (Df) such the Borrower or Holdings, as applicable, 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, if applicable, the perfection and priority of the Lien under the Collateral Documents and (g) if reasonably requested by the Administrative Agent, an opinion of counsel, each stating counsel to the effect that such merger merger, amalgamation or consolidation and such supplement to does not violate this Agreement or any Collateral Document comply with this Agreementother Loan Document; provided, further, further that if the foregoing are satisfied, as applicable (x) the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, such the Borrower under this Agreement or (y) the Successor Holdings (if other than Holdings) will succeed to, and be substituted for, Holdings under this Agreement. For the avoidance of doubt, if the Borrower is merged, amalgamated or consolidated with or into Holdings, Holdings shall become the Borrower hereunder;
(eii) so long as no Event any Subsidiary of Default has occurred and is continuing Holdings or would result therefrom any other Person (other than Holdings or the Borrower) may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of Holdings or the Borrower; provided that (a) in the case of a any merger, amalgamation or consolidation involving one or more Subsidiary Guarantors, (1) a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that Guarantor shall be the continuing or surviving corporation or (2) Holdings 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 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 the Borrower or any other Subsidiary Guarantor;
(iv) any Subsidiary Guarantor may liquidate or dissolve if (A) Holdings determines in good faith that such liquidation or dissolution is in the best interests of Holdings and 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 be the Parent Borrower transferred to, or a Restricted Subsidiaryotherwise owned or conducted by, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 another Guarantor after giving effect to the extent required under the Collateral and Guarantee Requirementsuch liquidation or dissolution; and
(fv) so long as no Event Holdings or the Borrower may, on the recommendation of Default has occurred and is continuing or would result therefromits tax advisors, a enter into any merger, consolidation, amalgamation, dissolution, liquidationarrangement, consolidation or Disposition, other reorganization with an Affiliate solely for the purpose and with the sole effect of which is to effect forming a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))holding company or reincorporating Holdings or the Borrower in a new jurisdiction within the United States or, in the case of Holdings, Canada, provided that Holdings or the Borrower, as the case may be, shall be the continuing or surviving entity.
Appears in 1 contract
Sources: Credit Agreement (Brookfield Residential Properties Inc.)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall it permit any of its Restricted Subsidiaries to, liquidatemerge, consolidate or amalgamate with or into another any 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 except for the Transactions), except that:
following: (a) [reserved]; (b) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, consolidate or amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted Columbia and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (iz) in the case of a merger or consolidation involving of Holdings with and into the Parent Borrower, (1) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Parent Borrower under this Agreement, (2) Holdings shall be have no direct Subsidiaries at the continuing or surviving corporation and in the case time of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not other than the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any (3) no Event of Default shall have occurred and be continuing prior to and after giving effect to such merger or consolidation is not consolidation, (4) after giving effect to such Borrower (any such Personmerger or consolidation, the “Successor Subsidiary Borrower” and each direct parent of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower Holdings under this Agreement and the other Credit Loan Documents to which such Borrower Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in Agent and thereafter such direct parent of the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is Borrower shall be deemed “Holdings” or all purposes under this Agreement and the other party to Loan Documents and (5) such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee direct parent of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered pledge 100% of the equity interest of the Borrower to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement as Collateral to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if secure the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (Obligations in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 form reasonably satisfactory to the extent required under the Collateral and Guarantee RequirementAdministrative Agent; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(ec)).
Appears in 1 contract
Sources: Credit Agreement (White Mountains Insurance Group LTD)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into or wind up or convert 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 Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, consolidate or amalgamate with or consolidate with into, or convert or wind up into the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger merger, consolidation, amalgamation, conversion or consolidation winding up does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia, and (z) in the case of a merger, consolidation or amalgamation of Holdings with and into or converting or winding up 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, consolidation, amalgamation, conversion or winding up other than the Borrower and, after giving effect to such merger, consolidation, amalgamation, conversion or winding up, 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 (acting at the direction of the Requisite Lenders);
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, consolidate or amalgamate or consolidate with or into or convert or wind up into any other Restricted Subsidiary of the Parent Borrower that is not a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge merge, consolidate or consolidate amalgamate with or into or convert or wind up into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger merger, consolidation, amalgamation, conversion or winding up the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate wind up, liquidate, convert or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and through (iiiiv) of this paragraph (b), that (A) no Event of Default would shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a permitted Investment in a Restricted Payment permitted by Subsidiary which is not a Loan Party in accordance with Section 7.06 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 7.06(b)(xix)) or a Permitted Investment9.5;
(d) so long as no Event of Default has occurred and is continuing or would result therefromexist immediately after giving effect thereto, any the Borrower may merge merge, consolidate or consolidate amalgamate with or into, or convert into, any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger merger, consolidation, amalgamation or consolidation conversion is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative AgentAgent (acting at the direction of, or with the consent of, the Requisite Lenders), (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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, consolidation or amalgamation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, consolidation or amalgamation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent (acting at the direction of, or with the consent of, the Requisite Lenders)) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, consolidation, amalgamation or consolidation conversion 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, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)exist immediately after giving effect thereto, any Restricted Subsidiary may merge, consolidate, amalgamate with or consolidate with into, or convert or wind up into any other Person in order to effect an Investment permitted pursuant to Section 7.06 9.2 (other than Section 7.06(b)(xix9.2(e)) or a Permitted Investment); provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its the Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to Sections 8.11 and 8.13;
(f) the extent required under the Collateral and Guarantee RequirementTransaction may be consummated; and
(fg) so long as no Event of Default has occurred and is continuing or would result therefromexist immediately after giving effect thereto, a merger, dissolution, liquidation, consolidation, amalgamation, dissolutionconversion, liquidation, consolidation winding up or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 9.5 (other than Section 7.05(e9.5(e)).
Appears in 1 contract
Fundamental Changes. Merge(a) The Parent will not, dissolveand will not permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all of the assets of the Parent and its Subsidiaries taken as a whole (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 (i) the Parent or the Borrower may merge into any other Person in a transaction in which it is the surviving entity, (ii) the Borrower may merge with and into any Subsidiary of the Parent organized in the United States, provided that (x) such Subsidiary is the surviving entity in such merger, is Solvent and assumes the obligations of the Borrower under this Agreement on terms in form and substance satisfactory to the Administrative Agent, (y) the Parent shall have given the Administrative Agent not less than ten days advance notice of such merger and (z) prior to the effectiveness of such merger, the Parent shall have provided all information of the type set forth in Section 4.01(g) to each Lender that shall have requested such information, (iii) any Subsidiary (other than the Borrower) may merge into the Parent in a transaction in which the Parent is the surviving corporation and any Subsidiary Guarantor may merge into the Borrower in a transaction in which the Borrower is the surviving Person, (iv) any Subsidiary (other than the Borrower) may merge into any Subsidiary (other than the Borrower) in a transaction in which the surviving entity is a Subsidiary (and, if any Subsidiary Guarantor is a party to such merger, the surviving entity shall agree to be a “Subsidiary Guarantor” hereunder and be bound by the provisions of this Agreement), (v) (x) any Subsidiary (other than the Borrower) may merge into any other Person in a transaction in which the surviving entity is a Subsidiary (and, if any Subsidiary Guarantor is a party to such merger, the surviving entity shall agree to be a “Subsidiary Guarantor” hereunder and be bound by the provisions of this Agreement) or (y) any Subsidiary (other than a Loan Party) may merge into any other Person in a transaction permitted by Section 6.09 and in which the surviving Person is not a Subsidiary; (vi) subject to the last sentence of this subsection (a), any Subsidiary (other than the Borrower) may sell, transfer, lease or otherwise dispose of its assets to the Parent or to another Subsidiary or in a transaction not constituting all or substantially all of the assets of the Parent and its Subsidiaries taken as a whole and which is permitted by Section 6.09 and (vii) any Subsidiary (other than a Loan Party) may liquidate or dissolve if the Parent determines in good faith that such liquidation or dissolution is in its best interests and is not materially disadvantageous to the Lenders; provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04. In addition to the requirements set forth in the immediately preceding sentence, the Parent will not permit any Subsidiary Guarantor to sell, transfer, lease or otherwise dispose of (in one transaction or 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 to (1) the Parent, (2) the Borrower, (3) an entity that is a Subsidiary prior to such sale, lease, transfer or other than as part disposition or (4) any other Person in a transaction not constituting a sale, lease, transfer or other disposition of all or substantially all of the Transactions), except that:
(a) any Restricted Subsidiary assets of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including and its Subsidiaries taken as a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Personwhole, and (y) such merger or consolidation does not result in which the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that surviving entity is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; providedso long as, in the case of clauses (ii3) and or (iii4), no Event such Subsidiary or other Person shall agree to be a “Subsidiary Guarantor” hereunder and be bound by the provisions this Agreement.
(b) The Parent will not, and will not permit any of Default would result therefrom;its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Parent and its Subsidiaries on the Effective Date and businesses reasonably related or incidental thereto.
(c) Nothing in this Agreement shall prohibit the Borrower or any Restricted other Subsidiary (from effecting a conversion pursuant to applicable law of the Borrower or such other than Subsidiary from a Borrower) may Dispose of all corporation into a limited liability company or substantially all of its assets (upon voluntary liquidation from a limited liability company into a corporation, and any such conversion shall not be deemed to be a consolidation, merger, transfer or otherwise) other disposition subject to the Parent requirements of this Section 6.03, provided that such conversion by law shall not be deemed to affect any obligations or liabilities of 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) other Subsidiary incurred prior to the extent constituting an Investment, effectiveness of such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent conversion. The Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: provide (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered written notice to the Administrative Agent an officer’s certificate of any such conversion of the Borrower or such other Subsidiary (if such other Subsidiary is a Subsidiary Guarantor) at least 10 days prior to the effectiveness of such conversion, (y) customary evidence relating to the organization, existence and an opinion good standing of counsel, each stating that the Borrower or such merger or consolidation other Subsidiary (if such other Subsidiary is a Subsidiary Guarantor) after giving effect to the conversion and such supplement to (z) customary legal opinions confirming the continued validity and enforceability of this Agreement or any Collateral Document comply with this Agreement; provided, further, that if against the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or such other Subsidiary (if such other Subsidiary is a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)Subsidiary Guarantor).
Appears in 1 contract
Sources: Credit Agreement (Delhaize Group)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) No Borrower will, nor will it permit any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; providedto, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge into or consolidate with any other Person; provided that , or permit any other Person to merge into or consolidate with it, 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, (i) any Person may merge into or consolidate with a Borrower in a transaction in which such Borrower is the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower entity or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or entity (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ) (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity is organized or existing under the laws of the United States, any state thereof, States (with respect to the District of Columbia Co-Borrower) or any territory thereof and in Ireland (with respect to the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland), (B) expressly assumes the Successor Borrower shall expressly assume all the applicable Borrower’s obligations of such Borrower under this Agreement and the other Credit 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) in the case of any such transaction involving Swiss each Subsidiary Borrower, each Swiss GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty Collateral Agreement confirmed that its guarantee of the Swiss Obligations (i) obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered each mortgagor of a Mortgaged Property, unless it is the other party to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement consolidation, shall have by an amendment to this Agreement or any Collateral Document comply with restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such the applicable Borrower under this Agreement;
, (eii) so long as no Event any Person (other than a Borrower) may merge into or consolidate 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 is a Subsidiary Loan Party, is a Subsidiary Loan Party, (iii) any Restricted Subsidiary other than a Borrower may merge into or consolidate with any Person in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Restricted Subsidiary, (iv) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of Default has occurred the Borrower and is continuing or would result therefrom (in not materially disadvantageous to the case of a merger, amalgamation Lenders; provided that any such merger or consolidation involving a Loan Party), Person that is not a wholly owned Restricted Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04 and (v) any Borrower or any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person engage in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, dissolution or liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.05 6.05.
(b) No Borrower will, or will permit any Restricted Subsidiary to, engage to any material extent in any business other than Section 7.05(e))businesses of the type to be conducted by the Borrowers and the Restricted Subsidiaries as described in the Form 10 and the public filings of the Borrower prior to the First Restatement Effective Date and businesses reasonably related, incidental or ancillary thereto.
Appears in 1 contract
Sources: Credit Agreement (Allegion PLC)
Fundamental Changes. Merge(a) Each Borrower will not, dissolveand will not permit any Subsidiary (other than any CLO Subsidiary) to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its the Borrowers’ assets (measured on a collective basis across all Borrowers), or all or substantially all of the Capital Stock of the Borrowers’ Subsidiaries (other than CLO Subsidiaries) (measured on a collective basis across all Borrowers) (in each case, whether now owned or hereafter acquired) to ), or in favor of any Person (other than as part of the Transactions)liquidate or dissolve, except that:
(a) any Restricted Subsidiary , if at the time thereof and immediately after giving effect thereto no Default or Event of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower Default shall have occurred and be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Person, including a Subsidiary that is a Non-Loan Party (other than a or Borrower) , may merge, amalgamate merge into or consolidate with or into any other Restricted Subsidiary of the Parent Borrowers in a transaction in which a Borrower that is a Non-Loan Party, the surviving entity; (ii) any Restricted Subsidiary (Person, other than a Borrower but including a Subsidiary, may merge into or consolidate with any Subsidiary in a transaction in which the surviving entity is a Subsidiary that is wholly owned by one or more of the Borrowers; (iii) any Borrower may merge into or consolidate with any Subsidiary in a transaction in which the surviving entity is a wholly owned Subsidiary, provided that (solely in a case of such a transaction involving a Borrower other than Oaktree AIF Investments, L.P.), such wholly owned Subsidiary (A) agrees to become a Borrower hereunder, (B) executes and delivers an assumption agreement assuming the obligations as a Borrower hereunder and such other documents reasonably requested by the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent with respect thereto (including, but not limited to, an opinion of counsel), (C) prior to such entity becoming a Borrower hereunder, provides to each Lender such documentation and other information as may be reasonably requested by such Lender in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT ACT and (D) if such Subsidiary is a foreign Subsidiary, each Lender is permitted to lend in the jurisdiction in which such Subsidiary is organized under applicable law and regulations (it being understood and agreed that the Borrowers may replace any Lender which is not permitted to lend to such Subsidiary pursuant to Section 2.16(b)); (iv) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to any of the Borrowers or to a wholly owned Subsidiary; (v) any Borrower may sell, transfer, lease or otherwise dispose of its assets (including any Capital Stock) to any other Borrower; (vi) any Borrower may sell, transfer, lease or otherwise dispose of its assets (including any Capital Stock) to a wholly owned Subsidiary, provided that in the event such transaction results in a transfer, lease or other disposition of all or substantially all of the Borrowers’ assets (measured on a collective basis across all Borrowers) to such Subsidiary, such Subsidiary (A) agrees to become a Borrower hereunder, (B) executes and delivers an assumption agreement assuming the obligations as a Borrower hereunder and such other documents reasonably requested by the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent with respect thereto (including, but not limited to, an opinion of counsel), (C) prior to such entity becoming a Borrower hereunder, provides to each Lender such documentation and other information as may be reasonably requested by such Lender in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT ACT and (D) if such Subsidiary is a foreign Subsidiary, each Lender is permitted to lend in the jurisdiction in which such Subsidiary is organized under applicable law and regulations (it being understood and agreed that the Borrowers may replace any Lender which is not permitted to lend to such Subsidiary pursuant to Section 2.16(b)); (vii) any Subsidiary may merge or consolidate with or into any other Restricted Person in a transaction in which the other Person is the surviving entity or sell, transfer, lease or otherwise dispose of its assets to any other Person which, in each case, (A) prior to such transaction did not have any operations and (B) the Borrowers own the same type and percentage of equity interests in such other Person as the Borrowers owned in such Subsidiary prior to such transaction; (viii) Oaktree AIF Investments, L.P. or any Subsidiary of the Parent a Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve if Oaktree AIF Investments, L.P. or change its legal form if the Parent Borrower such Borrower, respectively, determines in good faith that such action liquidation or dissolution is in the its best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(cix) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with transfer any Capital Stock of any of its Subsidiaries to any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss any wholly owned Subsidiary of another Borrower.
(b) Each Borrower will not, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) and will not permit any of its Subsidiaries to, engage to any material extent in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each business other than businesses of the Successor Parent Borrower type conducted by the Borrowers and the Successor Subsidiary Borrowers, Subsidiaries taken as a whole on the “Successor Borrower”), (A) in the case date of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws execution of the United States, any state thereof, the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))related thereto.
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 related transactions) all or substantially all of the assets of Holdings and its assets Restricted Subsidiaries (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) (i) any Restricted Subsidiary of the Parent Borrower Holdings may merge, amalgamate amalgamate, dissolve, liquidate or consolidate with the Parent any Borrower (including a merger, the purpose of which is to reorganize the Parent a Borrower into a new jurisdictionjurisdiction in any State of the United States or the District of Columbia) (and, for the avoidance of doubt, the applicable Borrower may be party to such transaction); provided that (x) the Parent applicable Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the applicable Borrower pursuant to documents reasonably acceptable to the Term Loan Administrative Agent and the applicable Borrower (or, if not a Borrower, the surviving Person, ) and (y) such merger shall be a corporation or consolidation does not result in the Parent Borrower ceasing to be a limited liability company organized under the Laws laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, Columbia and (ii) any Restricted Subsidiary (other than a Borrower) may merge merge, amalgamate, dissolve, liquidate or consolidate with any one or into any more other Restricted Subsidiary of the Parent Borrower that is a Loan Party, Subsidiaries;
(iiib) any merger the sole purpose of which is to reincorporate Holdings or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary may (other than a Borrowerif the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) may liquidate or dissolve or change its legal form if the Parent Borrower Holdings determines in good faith that such action is in the best interests interest of the Parent Borrower Holdings and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, Lenders in any material respect (it being understood that in the case of clauses (ii) 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 Term Loan Administrative Agent unless such Disposition of assets is permitted hereunder; and (iiiin 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), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower Holdings or another to any Restricted Subsidiary; provided that if the transferor in such a transaction is a Borrower or a Guarantor and the transferee is a Restricted Subsidiary that is not a Loan Party, then (i) the transferee must either be a Loan Party Borrower or be or become a Guarantor or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is an Investment not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreementprohibited hereunder; provided, further, that if the foregoing are satisfied, the Successor a Borrower will succeed to, and be substituted for, such Borrower under this Agreementmay Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Loan Party;
(ed) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with with, or liquidate or dissolve into or Dispose of assets to, any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that (i) the continuing or surviving Person shall be shall, to the Parent Borrower or a Restricted Subsidiaryextent required by the terms hereof, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.12, (ii) to the extent required under constituting an Investment, such Investment must be an Investment not prohibited hereunder and (iii) to the Collateral extent constituting a Disposition, such Disposition must be permitted hereunder;
(e) Holdings and Guarantee Requirement; andthe other Restricted Subsidiaries may consummate the Transactions;
(f) so long as no Event any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person or Dispose of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is assets in order to effect a Disposition permitted pursuant to Section 7.05 7.04 so long as such Disposition does not constitute a sale of all or substantially all of the assets of Holdings and its Restricted Subsidiaries to any Person that is not a Loan Party; and
(other than Section 7.05(e))g) any Investment may be structured as a merger, consolidation or amalgamation.
Appears in 1 contract
Fundamental Changes. Merge, 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 Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (xw) the Parent Borrower shall be the continuing or surviving Person, and (yx) such merger merger, amalgamation or consolidation does not result in (1) the Parent Borrower ceasing to be organized or incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia or (2) any Loan Party becoming an Excluded Subsidiary, (y) the Equity Interests of the Borrower shall continue to be directly owned by one or more Loan Parties and pledged as Collateral pursuant to the terms of the Collateral Documents, 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 Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;
(b) [reserved];
(i) any Restricted Subsidiary of Holdings that is not a Non-Loan Party may merge or consolidate with or into any other Restricted Subsidiary of Holdings that is not a Loan Party, (ii) any Restricted Subsidiary of Holdings (other than a the Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower Holdings that is a Loan PartyParty (or, to the extent the Borrower shall be a party to any such merger, amalgamation or consolidation, the Borrower shall be a surviving or continuing entity), (iii) any merger or amalgamation the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted (provided that such Person and each of its Restricted Subsidiaries that is a Loan Party prior to such merger or amalgamation shall be a Loan Party after giving effect to such reincorporation or reorganization) and (iv) any Restricted Subsidiary of Holdings (other than a the Borrower) may wind-up, liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower Loan Parties and its their Restricted Subsidiaries and is not materially disadvantageous to the Lenders; providedprovided that, in the case of clauses (ii) and through (iiiiv) of this Section 9.4(c), (A) no Event of Default would shall have occurred and be continuing or shall result therefromtherefrom and (B) the surviving or continuing Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be a Loan Party, the Equity Interest of whom shall be directly owned by one or more Loan Parties and pledged as Collateral pursuant to the terms of the Collateral Documents;
(cd) any Restricted Subsidiary (other than a the Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower a Loan Party or another Restricted Subsidiary; provided that that, if the transferor in such a transaction is a Loan Party, then (i1) the transferee must be a Loan Party or (ii2) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Payment permitted by Subsidiary which is not a Loan Party in accordance with Section 7.06 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 7.06(b)(xix)) or a Permitted Investment9.5;
(de) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any the Borrower may merge merge, amalgamate or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation Person or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving or continuing after any such merger merger, amalgamation or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary BorrowerColumbia, the Successor Subsidiary Borrower Equity Interests of which shall be an entity organized directly owned solely by one or existing under more Loan Parties and pledged as Collateral pursuant to the laws of: (x) in the case terms of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandCollateral Documents, (B) the such Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantorother Loan Party, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to this Agreement and the Swiss Guaranty Guaranty, confirmed that its guarantee Obligations (including its Guarantee of the Swiss Obligations Obligations) shall apply to the Successor Borrower’s obligations under this Agreement, and (D) each Loan Party, unless it is the other party to such Borrower merger, amalgamation 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) Holdings shall have delivered (or caused to be delivered) to the Administrative Agent an officer’s (1) a certificate and an opinion of counsel, each stating a Responsible Officer certifying that such merger merger, amalgamation or consolidation consolidation, and any such supplement to this Agreement or any Collateral Document delivered in connection with any such merger, amalgamation or consolidation, comply with this AgreementAgreement and (2) a customary opinion of counsel, including customary organization, due execution and authority, enforceability and attachment and perfection opinions and such other customary opinions as reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such the Borrower under this AgreementAgreement and (F) the Administrative Agent shall have received, at least three (3) Business Days prior to such merger, amalgamation or consolidation, (1) all documentation and other information about the Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (2) to the extent that any Successor Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification with respect to such Successor Borrower, in each case, that shall have been requested in writing at least ten (10) Business Days prior to the date of such merger, amalgamation or consolidation;
(ef) so long as no Default or Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary (other than the Borrower) may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 9.2 (other than Section 7.06(b)(xix9.2(e)) or a Permitted Investment); provided that the continuing or surviving Person shall be the Parent a Borrower or a Restricted Subsidiary, which together with each of its their Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral Sections 8.11, 8.12 and Guarantee Requirement8.13; and
(fg) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 9.5 (other than Section 7.05(e9.5(e)). Any transaction permitted by any of Sections 9.4(a) through 9.4(g) made in reliance on an Specified Asset Disposition/Investment Provision shall be subject to compliance with Section 7.4(b).
Appears in 1 contract
Sources: Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia 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 Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any 126 J. Crew Term Loan Credit Agreement other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; , provided, in the case of clauses (ii) and through (iiiiv), that (A) no Event of Default would shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a permitted Investment in a Restricted Payment permitted by Section 7.06 Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.06(b)(xix7.02(e)) or a Permitted Investment);
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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 or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such 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, such the Borrower under this Agreement;; 127 J. Crew Term Loan Credit Agreement
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom therefrom, Holdings may merge or consolidate with any other Person; provided that (in A) Holdings shall be the case of a continuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation involving is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”) (A) the Successor Holdings 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 Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Party)Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) 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 Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(f) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 7.02 (other than Section 7.06(b)(xix7.02(e)) or a Permitted Investment); provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to 6.11;
(g) the extent required under the Collateral and Guarantee RequirementMerger may be consummated; and
(fh) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 1 contract
Sources: Credit Agreement (J Crew 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 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 TransactionsTransaction), except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger merger, amalgamation or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger, amalgamation or consolidation of Holdings with and into the Parent Borrower, Holdings shall not be an obligor in respect of any Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Parent Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger, amalgamation or consolidation other than the Parent Borrower and, after giving effect to such merger, amalgamation or consolidation, the direct parent of the Parent 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;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a the Parent Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), (A) no Event of Default would shall result therefromtherefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Loan Party) shall be a Loan Party;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix7.06(b)(xviii)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any the Parent Borrower may merge merge, dissolve, liquidate, amalgamate or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Parent Borrower or is a Person into which the Borrower has been liquidated or dissolved (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Parent Borrower under this Agreement and the other Credit Loan Documents to which such the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger merger, dissolution, liquidation, amalgamation or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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, dissolution, liquidation, amalgamation or consolidation, shall have by a supplement to the applicable Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (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 this Agreement, and (DF) such the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such the Parent Borrower under this Agreement;
(e) so long as no Event Default has occurred and is continuing or would result therefrom, Holdings may merge, dissolve, liquidate, amalgamate or consolidate with any other Person; provided that (i) Holdings shall be the continuing or surviving Person or (ii) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated or dissolved (any such Person, the “Successor Holdings”), (A) the Successor Holdings 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 Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Parent 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; provided, further, that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(f) so long as no Default has occurred and is continuing or would result therefrom (solely in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix7.06(b)(xviii)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiarysubsidiary, which together with each of its Restricted SubsidiariesSubsidiary, shall have complied with the applicable requirements of Section 6.11 to 6.11;
(g) the extent required under Transaction (including the Collateral Reorganization and Guarantee Requirementthe issuance of the Hook Stock) may be consummated; and
(fh) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 1 contract
Fundamental Changes. Merge(a) The Borrower may not consolidate, dissolve, liquidate, consolidate merge or amalgamate with or into another Person, or Dispose of wind up into (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 not the TransactionsBorrower is the surviving corporation), except that:
(a) any Restricted Subsidiary of and the Parent Borrower may mergenot sell, amalgamate assign, transfer, lease, convey or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose otherwise dispose of all or substantially all of the properties or assets of the Borrower and its assets (upon voluntary liquidation Restricted Subsidiaries, taken as a whole, in one or otherwise) more related transactions, to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then any Person unless:
(i) the transferee must be a Loan Party or (ii) to Borrower is the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such consolidation, merger or consolidation is not amalgamation (if other than the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by to whom such sale, assignment, transfer, lease, conveyance or surviving any such merger or consolidation other disposition will have been made is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower(such Person, the “Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: Company”);
(x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (Bii) the Successor Borrower shall Company, if other than the Borrower, expressly assume assumes all the obligations Obligations of such the Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form documentation reasonably satisfactory to the Administrative Agent, ; and
(Ciii) in the case of any such transaction involving Swiss each Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidationthe transactions described above, in which case clause (i)(B) of Section 6.04(c) shall apply, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of Obligations under the Swiss Obligations shall apply applicable Loan Documents to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered which it is a party pursuant to documentation reasonably satisfactory to the Administrative Agent Agent; The Successor Company will succeed to, and be substituted for the Borrower under the Loan Documents.
(b) Subject to the other provisions of Section 6.04(a),
(i) a Restricted Subsidiary may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to (A) the Borrower or any other Restricted Subsidiary or (B) any other Person so long as the transaction does not violate Section 6.05; and
(ii) the Borrower may merge with an officer’s certificate Affiliate of the Borrower solely for the purpose of reorganizing the Borrower in a different State of the United States, so long as the amount of Indebtedness of the Borrower and an opinion its Restricted Subsidiaries is not increased thereby.
(c) No Subsidiary Guarantor will, and the Borrower will not permit any Subsidiary Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not the Borrower or a Subsidiary Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of counselall or substantially all of its properties or assets, each stating that in one or more related transactions, to any Person unless:
(A) such Subsidiary Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation, merger or consolidation and amalgamation (if other than such supplement Subsidiary Guarantor) or to this Agreement which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or the laws of the United States, any state thereof, the District of Columbia, or any Collateral Document comply with this Agreementterritory thereof (such Subsidiary Guarantor or Person, the “Successor Subsidiary Person”); providedand
(B) the Successor Subsidiary Person, furtherif other than such Subsidiary Guarantor, that if expressly assumes all the foregoing are satisfiedObligations of such Subsidiary Guarantor pursuant to documentation reasonably satisfactory to the Administrative Agent; or
(ii) the transaction does not violate Section 6.05; In the case of clause (i)(A) above, the Successor Borrower Subsidiary Person will succeed to, and be substituted for, such Subsidiary Guarantor under the applicable Loan Documents. Notwithstanding anything to the contrary in this Section 6.04, (i) any Subsidiary Guarantor may merge into, amalgamate with or transfer all or part of its properties and assets to another Restricted Subsidiary or the Borrower under this Agreement;
and (eii) so long as no Event any Restricted Subsidiary may dissolve or liquidate its affairs if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of Default has occurred the Borrower and is continuing not materially disadvantageous to the Lenders and (y) any assets or would result therefrom (business of such Restricted Subsidiary not otherwise disposed of or transferred in accordance with Section 6.05 or, in the case of a mergerany such business, amalgamation discontinued, shall be transferred to, or consolidation involving otherwise owned or conducted by, a Loan Party)Party or the relevant transfer is treated as an Investment subject to Section 6.03 after giving effect to such liquidation or dissolution. Notwithstanding anything to the contrary in this Section 6.04, any Restricted Subsidiary Guarantor may mergemerge into, amalgamate with or consolidate transfer all or part of its properties and assets to another Subsidiary Guarantor or the Borrower without the necessity of complying with any other Person in order requirement to effect an Investment permitted pursuant to provide notice as otherwise required by Section 7.06 (other than Section 7.06(b)(xix)6.04(a) or a Permitted Investment; provided that (c) or any requirement to provide the continuing or surviving Person shall be documentation described in Section 6.04(a)(iii). Notwithstanding anything to the Parent contrary in this Section 6.04, the Borrower or a Restricted Subsidiary, which together with each of and its Restricted SubsidiariesSubsidiaries may consummate the Transactions, shall have complied with including the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))Effective Date Mergers.
Appears in 1 contract
Fundamental Changes. MergeThe U.S. Borrower shall not, dissolvenor shall it permit any of its Restricted Subsidiaries to, liquidatemerge, or consolidate or amalgamate with or into another any 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 except for the Transactions), except that:
following: (a) [reserved]; (b) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate or amalgamate with the Parent U.S. Borrower (including a merger, or consolidation the purpose of which is to reorganize the Parent U.S. Borrower into a new jurisdiction); provided that (x) the Parent U.S. Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent U.S. Borrower ceasing to be organized under the Laws Lawslaws of the United States, any state thereof or the District of Columbia;Columbia and (z) in the case of a merger or consolidation of Holdings with and into the U.S. Borrower, (1) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the U.S. Borrower under this Agreement, (2) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the U.S. Borrower, (3) no Event of Default shall have occurred and be continuing prior to and after giving effect to such merger or consolidation, (4) after giving effect to such merger or consolidation, the direct parent of the U.S. 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 thereafter such direct parent of the U.S. Borrower shall be deemed “Holdings” or all purposes under this Agreement and the other Loan Documents and (5) such direct parent of the U.S. Borrower shall pledge 156 [[5286738]]
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Non-Loan Party, (ii) any Restricted Subsidiary (other than a the U.K. Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, and (iii) any merger or consolidation the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenderspermitted; provided, in the case of clauses (ii) and (iii), that (A) no Event of Default would result therefrom;
shall have occurred and be continuing prior to and after giving effect to such merger or consolidation and (c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (iB) the transferee must surviving Person shall be a Loan Party (and, if any party to such merger or (ii) to the extent constituting an Investmentconsolidation is a U.S. Loan Party, such Investment must shall be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)U.S. Loan Party) or such transaction muchmust be a Permitted Investment;
Investment in accordance with Section 8.3; (d) so long as no Default or Event of Default has shall have occurred and is be continuing prior to and after giving effect to such merger, or would result therefromconsolidation or amalgamation, any the U.S. Borrower or the U.K. Borrower may merge merge, or consolidate or amalgamate with any other PersonPerson (other than the other Borrower); provided that (i) in the case of a merger U.S. Borrower or consolidation involving the Parent U.K. Borrower, the Parent Borrower as applicable, shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation entity or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger merger, or consolidation or amalgamation is not the Parent U.S. Borrower or the U.K. Borrower, as applicable (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the thea “Successor Borrower”), ,
(A) thesuch Successor Borrower shall (1) in the case of a merger involving the Parent proposed substitution of the U.S. Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia Columbia, or any territory thereof and (2) in the case of a merger involving the Japanese Subsidiary Borrower or proposed substitution of the Swiss Subsidiary U.K. Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan England and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandWales, (B) the thesuch Successor Borrower shall expressly assume all the obligations of such the applicable Borrower under this Agreement and the other Credit Loan Documents to which such the applicable Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in each Loan Party, unless it is the case of any other party to such transaction involving Swiss Subsidiary merger, or consolidation or amalgamation, shall have by a supplement tocustomary reaffirmation agreement confirm that its obligations under the Guaranty and Security Agreement confirmed that its obligations thereunderand the Collateral Documents shall apply to thesuch Successor Borrower’s obligations under this Agreement, (D) if requested by the Administrative Agent, each Swiss Guarantormortgagor of a property subject to a Mortgage, unless it is the other party to such merger or consolidation, shall have by a supplement an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Swiss Guaranty Administrative Agent) confirmed that its guarantee of the Swiss Obligations obligations thereunder shall apply to the thesuch Successor Borrower’s obligations under this Agreement, and (DE) such the U.S. Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement, and, with respect to such opinion of counsel only, including customary organization, due execution, no conflicts and enforceability opinions and if applicable customary continuing security interest and perfection opinions, in each case, to the extent reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the thesuch Successor Borrower will succeed to, and be substituted for, such the applicable Borrower under this Agreement;
; and (e) so long as no Event of Default has occurred the Acquisition and is continuing the ▇▇▇ Acquisition may be consummated.mergers or would result therefrom (in the case of a mergerconsolidations that constitute or effect Permitted Investments, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment Payments permitted pursuant to by Section 7.06 8.5 (other than Section 7.06(b)(xix)clause (m) thereof) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Sales permitted by Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 8.4 (other than Section 7.05(eclause (i) thereof))., provided that any such merger or consolidation to which any Borrower is a party shall be subject to clause (d) above. 157 [[5286738]]
Appears in 1 contract
Sources: Credit Agreement (White Mountains Insurance Group LTD)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)Person, except that:
, so long as no Default exists or would result therefrom: (a) any Restricted Subsidiary of the Parent Borrower may merge, consolidate or amalgamate or consolidate with the Parent Borrower any other Person (including a provided, that, if such merger, consolidation or amalgamation involves the purpose of which Borrower, the Borrower is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person); (b) the Borrower may merge, and consolidate or amalgamate with any other Person, so long as (yi) such merger the Borrower is the continuing or consolidation does not result in surviving Person or (ii) the Parent Borrower ceasing to be surviving Person is organized under the Laws laws of the United States, any state thereof or the District of Columbia;
Columbia and assumes in writing all of the Borrower’s Obligations pursuant to documentation reasonably satisfactory to the Administrative Agent and provides to the Administrative Agent and the Lenders 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 PATRIOT Act and, to the extent such surviving Person qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification, with results reasonably satisfactory to the Administrative Agent and each of the Lenders (and upon any consolidation by the Borrower with or merger by the Borrower into any other Person, the successor Person formed by such consolidation or into which the Borrower is merged shall succeed to, and be substituted for, and may exercise every right and power of, the Borrower under this Agreement with the same effect as if such successor Person had been named the Borrower herein) and immediately after giving effect to such merger, consolidation or amalgamation no Default shall have occurred and be continuing; (c) the Borrower or any Subsidiary may, (i) any Restricted Subsidiary that is in one transaction or a Non-Loan Party (other than a Borrower) may mergeseries of transactions, amalgamate Dispose of its assets, or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) in the case of any Restricted Subsidiary, liquidate or dissolve, so long as, in the case of any such Disposition, liquidation or dissolution pursuant to clause (c)(i) or clause (c)(ii) above, such Disposition (whether in one transaction or in a series of transactions), such liquidation or such dissolution does not constitute or otherwise result in the Disposition of all or substantially all of the assets of the Borrower or the Borrower and its Subsidiaries, taken as a whole; and (d) any Subsidiary (other than a Borrowerany Material Subsidiary) may merge be liquidated or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form dissolved if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 1 contract
Sources: Credit Agreement (Adobe Inc.)
Fundamental Changes. MergeThe Company will not, dissolveand will not permit any of the Restricted Subsidiaries 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 Dispose of (whether in one transaction convey, sell, lease, assign, transfer or in a series of related transactions) otherwise dispose of, all or substantially all of its business units, assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)properties, except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge Subsidiary of the Company or consolidate with any other PersonPerson may be merged, amalgamated or consolidated with or into the Company or any Borrower; provided that (iA) in the case of a merger Company or consolidation involving the Parent Borrower, the Parent such Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation entity or (iiB) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) Company or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such other Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A1) in the case of a merger involving the Parent Borrower, the Successor Borrower shall shall, as the case may be, be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any AMERICAS/2024254939.6 139 Sealed Air – 4th A&R Syndicated Facility Agt territory thereof and or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrowerthat is a Foreign Subsidiary, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case law of the Japanese jurisdiction where the relevant Borrower that is a Foreign Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandwas organized, (B2) the Successor Borrower shall expressly assume all the obligations of the Company or such Borrower under this Agreement and the other Credit Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C3) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations guaranty thereunder shall apply to the any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to any applicable Collateral Document, affirmed that all of its obligations thereunder shall still apply and (D5) such the Successor Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any supplements preserve the enforceability of the Guaranty and the perfection and priority of the Liens under the applicable Collateral Document comply with this Agreement; provided, further, Documents (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Company or such Borrower Borrower, as applicable, under this Agreement);
(eii) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, any Subsidiary of the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 Company (other than Section 7.05(eany Subsidiary that is a Borrower) or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Company (other than any Subsidiary that is a Borrower))., provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Company shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall, execute a supplement to the Guaranty and the relevant Collateral Documents in form and substance reasonably satisfactory to the Agent in order to become a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder for the benefit of the Secured Parties, (iii) no Default or Event of Default has occurred and is continuing or would result from the consummation of such merger, amalgamation or consolidation and (iv) the Company shall have delivered to the Agent an officers’ certificate stating that such merger, amalgamation or consolidation and any such supplements to any Collateral Document preserve the enforceability of the Guaranties and the perfection and priority of the Liens under the applicable Collateral Documents;
(iii) any Restricted Subsidiary that is not a Loan Party may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Company or any other Restricted Subsidiary; AMERICAS/2024254939.6 140 Sealed Air – 4th A&R Syndicated Facility Agt (iv) any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any Loan Party, provided that the consideration for any such disposition by any Person other than a Guarantor shall not exceed the fair value of such assets;
Appears in 1 contract
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Subsidiary may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary (provided that the Borrower's proportionate interest in the assets and business of the merged subsidiary has not diminished), (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary (provided that the Borrower's proportionate interest in the assets sold, transferred, leased, or disposed of has not diminished) and (iv) 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 Lenders.
(a) Except (i) for sales of inventory in the ordinary course of business and the disposition of obsolete, surplus, or otherwise unusable equipment, (ii) for sales of accounts receivable by the Borrower and any Subsidiaries to Volt Information Sciences Funding, Inc. and (iii) pursuant to the Receivables Program (or a similar program if permitted as set forth in the further proviso of the succeeding sentence of this paragraph), the Borrower will not, and will not permit any Subsidiaries to, sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all stock of any Subsidiary (whether owned on the Effective Date or substantially all of its thereafter acquired), or assets (whether now owned on the Effective Date or hereafter thereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
representing (i) in any Restricted fiscal year, 15% of Consolidated Assets as of the end of the most recently completed fiscal year, or (ii) on a cumulative basis commencing on the Effective Date, 30% of Consolidated Assets as of the end of the most recently completed fiscal year; provided, that there shall be excluded from such annual and cumulative amounts, for the purposes of this sentence, the amount of the proceeds of any such disposition that within 180 days from the date thereof are applied to the acquisition by the Borrower or a Subsidiary that is a Non-Loan Party (thereof of operating assets used in the ordinary course of its business. Without limiting the foregoing, neither the Borrower nor any Subsidiary shall sell, assign, discount or otherwise dispose of notes, accounts receivable or other than a Borrower) may mergerights to receive payment, amalgamate or consolidate with or into any other Restricted Subsidiary without recourse, except (i) for collections and credits in the ordinary course of the Parent Borrower that is a Non-Loan Partybusiness, (ii) for sales of accounts receivables by the Borrower and any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan PartySubsidiaries to Volt Information Sciences Funding, Inc. and (iii) pursuant to the Receivables Program (provided that no new commercial paper may be issued thereunder and neither the Borrower nor any merger Subsidiary may sell accounts receivables to Omnibus Funding Corporation or to any successor thereto); provided further, however, that upon written consent of the Required Lenders in their sole purpose and absolute discretion specifying the terms and conditions of which is to reincorporate or reorganize such consent, a Loan Party new program involving sales of accounts receivable as part of a securitized facility may be implemented by the Borrower.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (business other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests businesses of the Parent type conducted by the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to on the Lenders; provided, in the case date of clauses (ii) and (iii), no Event execution of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents businesses reasonably related thereto except to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory an extent not material to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by Borrower and its Subsidiaries taken as a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))whole.
Appears in 1 contract
Fundamental Changes. Merge(a) The Domestic Borrower will not, dissolveand will not permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Subsidiary 51 57 may merge into the Domestic Borrower in a transaction in which the Domestic Borrower is the surviving corporation, (ii) any Subsidiary (other than a Subsidiary Borrower) may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary (provided that the Domestic Borrower's proportionate interest in the assets and business of the merged subsidiary has not diminished), (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Domestic Borrower or to another Subsidiary (provided that the Domestic Borrower's proportionate interest in the assets sold, transferred, leased, or disposed of has not diminished) and (iv) any Subsidiary (other than a Subsidiary Borrower) may liquidate or dissolve if the Domestic Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Domestic Borrower and is not materially disadvantageous to the Lenders.
(b) Except (i) for sales of inventory in the ordinary course of business and the disposition of obsolete, surplus, or otherwise unusable equipment and (ii) for sales of accounts receivable by the Domestic Borrower and any Subsidiaries to Volt Information Sciences Funding, Inc., the Domestic Borrower will not, and will not permit any Subsidiaries to, sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all stock of any Subsidiary (whether owned on the Effective Date or substantially all of its thereafter acquired), or assets (whether now owned on the Effective Date or hereafter thereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
representing (i) in any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may mergefiscal year, amalgamate or consolidate with or into any other Restricted Subsidiary 15% of Consolidated Assets as of the Parent Borrower that is a Non-Loan Partyend of the most recently completed fiscal year, or (ii) any Restricted Subsidiary (other than on a Borrower) may merge or consolidate with or into any other Restricted Subsidiary cumulative basis commencing on the July 2, 1997, 30% of Consolidated Assets as of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests end of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lendersmost recently completed fiscal year; provided, that there shall be excluded from such annual and cumulative amounts, for the purposes of this sentence, the amount of the proceeds of any such disposition that within 180 days from the date thereof are applied to the acquisition by the Domestic Borrower or a Subsidiary thereof of operating assets used in the case ordinary course of clauses its business. Without limiting the foregoing, neither the Domestic Borrower nor any Subsidiary shall sell, assign, discount or otherwise dispose of notes, accounts receivable or other rights to receive payment, with or without recourse, except (i) for collections and credits in the ordinary course of business and (ii) for sales of accounts receivables by the Domestic Borrower and (iii)any Subsidiaries to Volt Information Sciences Funding, no Event of Default would result therefrom;Inc.
(c) The Domestic Borrower will not, and will not permit any Restricted Subsidiary (of its Subsidiaries to, engage in any business other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each businesses of the Successor Parent type conducted by the Domestic Borrower and its Subsidiaries on the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case date of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws execution of the United States, any state thereof, the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents businesses reasonably related thereto except to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory an extent not material to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by Domestic Borrower and its Subsidiaries taken as a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))whole.
Appears in 1 contract
Fundamental Changes. MergeThe Company will not, dissolveand will not permit any of the Restricted Subsidiaries 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 Dispose of (whether in one transaction convey, sell, lease, assign, transfer or in a series of related transactions) otherwise dispose of, all or substantially all of its business units, assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)properties, except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge Subsidiary of the Company or consolidate with any other PersonPerson may be merged, amalgamated or consolidated with or into the Company or any Borrower; provided that (iA) in the case of a merger Company or consolidation involving the Parent Borrower, the Parent such Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation entity or (iiB) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) Company or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such other Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A1) in the case of a merger involving the Parent Borrower, the Successor Borrower shall shall, as the case may be, be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof and or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrowerthat is a Foreign Subsidiary, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case law of the Japanese jurisdiction where the relevant Borrower that is a Foreign Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandwas organized, (B2) the Successor Borrower shall expressly assume all the obligations of the Company or such Borrower under this Agreement and the other Credit Loan Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C3) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations guaranty thereunder shall apply to the any Successor Borrower’s obligations under this Agreement, (4) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger or consolidation, shall have by a supplement to any applicable Collateral Document, affirmed that all of its obligations thereunder shall still apply and (D6) such the Successor 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 supplements preserve the enforceability of the Guaranty and the perfection and priority of the Liens under the applicable Collateral Document comply with this Agreement; provided, further, Documents (it being understood that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Company or such Borrower Borrower, as applicable, under this Agreement);
(eii) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of the Company or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Company, provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Company shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall, execute a supplement to the Guaranty and the relevant Collateral Documents in form and substance reasonably satisfactory to the Agent in order to become a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder for the benefit of the Secured Parties, (iii) no Default or Event of Default has occurred and is continuing or would result from the consummation of such merger, amalgamation or consolidation and (iv) the Company shall have delivered to the Agent an officers’ certificate stating that such merger, amalgamation or consolidation and any such supplements to any Collateral Document preserve the enforceability of the Guaranties and the perfection and priority of the Liens under the applicable Collateral Documents;
(iii) the Acquisition may be consummated;
(iv) any Restricted Subsidiary that is not a Loan Party may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Company or any other Restricted Subsidiary;
(v) any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any Loan Party, provided that the consideration for any such disposition by any Person other than a Guarantor shall not exceed the fair value of such assets;
(vi) any Restricted Subsidiary may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(vii) to the extent that no Default or Event of Default would result from the consummation of such disposition or investment, the Company and the Restricted Subsidiaries may consummate a merger, consolidation, amalgamation, dissolution, liquidation, consolidation consolidation, investment or Dispositiondisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 5.02(e) or an Investment permitted pursuant to Section 5.02(d);
(viii) the Company and the Restricted Subsidiaries may consummate a Disposition constituting the sale of manufacturing facilities and related assets, in connection with establishing outsourcing arrangements providing substantially similar functionality;
(ix) the Specified Foreign Restructuring Transactions may be consummated; and
(x) any other than transaction set forth on Schedule 5.02(e) may be consummated; provided, however, except as permitted by Section 7.05(e5.01(e)(x)(v), Section 5.02(e)(xiv), Section 5.02(f)(ix) or Section 5.02(f)(x), neither the Company nor any Domestic Subsidiary will convey, sell, lease, assign, transfer or otherwise dispose of (collectively, a “transfer”) any of its property, business or assets (including, without limitation leasehold interests), whether now owned or hereafter acquired, to any Foreign Subsidiary, except to the extent that such transfer or series of related transfers (A) individually or in the aggregate, would not reasonably be expected to materially and adversely affect the business, results of operations or financial condition of the Company and its Subsidiaries taken as a whole, (B) are made for cash consideration payable in immediately available funds (provided that this clause (B) shall not apply to any transfer of Equity Interest for which reasonable equivalent non-cash value is given), and (C) are made for consideration equal to the value of the asset or assets that would be attributed to such asset or assets being transferred by an independent and unaffiliated third party purchasing such assets in an arms-length sale transaction as of such date, as determined in good faith by the Company.
Appears in 1 contract
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or dispose of (whether in one transaction or in a series of 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 Transactions), except that:
(a1) Subject to clause (g) of Section 4.1 of the Security Agreement, Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, and ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;Columbia and
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving of Holdings with and into the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ,
(A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, Columbia,
(B) the Successor Borrower shall expressly assume all the obligations of such Borrower Holdings under this Agreement and the other Credit Loan Documents to which such Borrower Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent and the Borrower,
(C) in (I) expressly assume all the case obligations of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower and (II) pledge 100% of the Equity Interests of the Borrower to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrower,
(D) if requested by the Administrative Agent, deliver, or cause the Borrower to deliver, to the Administrative Agent (I) an officerOfficer’s certificate and an opinion of counsel, each Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this Agreement; providedAgreement and (II) an Opinion of Counsel including customary organization, furtherdue execution, that if the foregoing are satisfied, the Successor Borrower will succeed to, no conflicts and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 enforceability opinions to the extent required under reasonably requested by the Collateral and Guarantee RequirementAdministrative Agent; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
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 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 Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower The Loan Parties will not merge into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that , or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except 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) any Facility Guarantor may merge into any other Facility Guarantor, provided that in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrowerthe Parent, each Swiss Guarantor, unless it is the other party to such merger or consolidation, Parent shall have by a supplement to be the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreementsurviving entity, and (Dii) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply mergers may take place in connection with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed toPermitted Acquisitions, and be substituted for, such Borrower under this Agreement;
(eiii) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 Facility Guarantor (other than Section 7.06(b)(xix)the Parent) may liquidate or dissolve voluntarily into the Parent, further provided that neither the Parent nor any of its Subsidiaries shall be required to preserve any right, permit, license, approval, privilege or franchise if the board of directors of the Parent or the board of directors, board of members, manager(s) or general partners, as applicable, of such Subsidiary shall determine that the presentation thereof is no longer desirable in the conduct of the business of the Parent or such Subsidiary, as the case may be, and the loss thereof could not reasonably be expected to result in a Permitted InvestmentMaterial Adverse Effect.
(b) The Loan Parties will not engage, to any material extent, in any business other than businesses substantially the same as, reasonably related to, or complementary to one or more lines of business conducted by the Loan Parties on the date of execution of this Agreement (as, for example, retail stores with inventory categories comparable to those in Borrower’s existing stores but in formats with different retail pricing structures); provided that any Inventory in such stores shall not be considered Eligible Inventory unless and until the continuing or surviving Person Collateral Agent has completed an appraisal of such Inventory, establishes an advance rate and Inventory Reserves (if applicable) therefor, and otherwise agrees that such Inventory shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))deemed Eligible Inventory.
Appears in 1 contract
Sources: Credit Agreement (Stage Stores Inc)
Fundamental Changes. Merge(a) The Borrower may not consolidate, dissolve, liquidate, consolidate merge or amalgamate with or into another Person, or Dispose of wind up into (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 not the TransactionsBorrower is the surviving corporation), except that:
(a) any Restricted Subsidiary of and the Parent Borrower may mergenot sell, amalgamate assign, transfer, lease, convey or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose otherwise dispose of all or substantially all of the properties or assets of the Borrower and its assets (upon voluntary liquidation Restricted Subsidiaries, taken as a whole, in one or otherwise) more related transactions, to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then any Person unless:
(i) the transferee must be a Loan Party or (ii) to Borrower is the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such consolidation, merger or consolidation is not amalgamation (if other than the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by to whom such sale, assignment, transfer, lease, conveyance or surviving any such merger or consolidation other disposition will have been made is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower(such Person, the “Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: Company”);
(x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (Bii) the Successor Borrower shall Company, if other than the Borrower, expressly assume assumes all the obligations Obligations of such the Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form documentation reasonably satisfactory to the Administrative Agent, ; and
(Ciii) in the case of any such transaction involving Swiss each Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidationthe transactions described above, in which case clause (i)(B) of Section 6.04(c) shall apply, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of Obligations under the Swiss Obligations shall apply applicable Loan Documents to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered which it is a party pursuant to documentation reasonably satisfactory 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 AgreementAgent; provided, further, that if the foregoing are satisfied, the The Successor Borrower Company will succeed to, and be substituted for, such for the Borrower under this Agreement;the Loan Documents.
(eb) Subject to the other provisions of Section 6.04(a),
(i) a Restricted Subsidiary may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to (A) the Borrower or any other Restricted Subsidiary or (B) any other Person so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to transaction does not violate Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement6.05; and
(fii) the Borrower may merge with an Affiliate of the Borrower solely for the purpose of reorganizing the Borrower in a different State of the United States, so long as no Event the amount of Default has occurred Indebtedness of the Borrower and its Restricted Subsidiaries is continuing not increased thereby.
(c) No Subsidiary Guarantor will, and the Borrower will not permit any Subsidiary Guarantor to, consolidate, merge or would result therefromamalgamate with or into or wind up into (whether or not the Borrower or a -133- WEIL:\96480003\20\34471.0013 Subsidiary Guarantor is the surviving corporation), a mergeror 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 unless:
(i) (A) such Subsidiary Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation, amalgamationmerger or amalgamation (if other than such Subsidiary Guarantor) or to which such sale, dissolutionassignment, liquidationtransfer, consolidation lease, conveyance or Dispositionother disposition will have been made is organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or the laws of the United States, any state thereof, the purpose District of which is to effect a Disposition permitted pursuant to Section 7.05 Columbia, or any territory thereof (other than Section 7.05(esuch Subsidiary Guarantor or Person, the “Successor Subsidiary Person”)).; and
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, recapitalize, 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 Transactions), except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, :
(a) any Borrower or Significant Subsidiary that is a Loan Party may merge or consolidate with any other PersonDomestic Subsidiary; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall such Loan Party will be the continuing or surviving corporation Person; or (ii) if such Loan Party is not the continuing or surviving Person, then (A) such Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation and in (B) concurrently with the case effectiveness of a such merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrowerconsolidation, the Japanese continuing or surviving Domestic Subsidiary Borrower will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the Swiss provisions of the Loan Documents after giving effect to such merger or consolidation;
(b) any Significant Subsidiary Borrower shall may merge or consolidate with (i) any Loan Party, provided that (A) such Loan Party will be the continuing or surviving Person or (B) if such Loan Party is not the continuing or surviving Person, then (1) such Subsidiary will be a Domestic Subsidiary, (2) the Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation and (3) concurrently with the effectiveness of such merger or consolidation, such Domestic Subsidiary will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the provisions of the Loan Documents after giving effect to such merger or consolidation; (ii) any one or more other Domestic Subsidiaries that is not a Loan Party, provided that if any merger or consolidation of two such Domestic Subsidiaries which are not Loan Parties results in the creation of a Material Subsidiary, such resulting Subsidiary will be subject to Section 6.12; or (iii) any Foreign Subsidiary; provided that such merging or consolidating Subsidiary is not a Loan Party;
(c) Parent may re-incorporate in Delaware (whether as a result of a merger, conversion or otherwise) so long as (i) Parent provides Administrative Agent with written notice at least ten days prior to the consummation of such re-incorporation (provided that such notice requirement shall be satisfied by Parent making available the related proxy materials to Administrative Agent in accordance with Section 6.01, it being understood that such re-incorporation may be effected immediately following the approval thereof by the Parent’s shareholders); (ii) such re-incorporation does not conflict with, or will not result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time or both would constitute a breach of or default under), any lease agreement, commitment or other instrument where such conflict, breach or default could reasonably be expected to cause a Material Adverse Change (unless the counterparty to such lease agreement, commitment or other instrument has consented to such re-incorporation); (iii) the consummation of the re-incorporation will not conflict with, or result in a violation of, any Law applicable to Parent or the successor corporation where such violation would constitute a breach of Section 6.07; (iv) as soon as possible, and in any event within three Business Days, following the effectiveness of such re-incorporation, a Responsible Officer of Parent will (A) certify each of the conditions set forth in clauses (i) through (v) and (B) attach to such certification (1) a certified copy of the successor corporation’s certificate of incorporation, (2) a certified copy of the certificate of merger, if any, (3) the resolutions of the Board of Directors of each of Parent and the successor corporation approving the re-incorporation, and (4) the successor corporation’s bylaws; provided that if Parent has not received either the certificate of incorporation of the successor corporation described in clause (1) and/or the certificate of merger describe in clause (2), in either case, in certified form from the Delaware Secretary of State, such certificate of Parent’s Responsible Officer will attach a copy of the certificate of incorporation and/or certificate of merger, as the case may be, in the form as such document was submitted to the Delaware Secretary of State to effect such re-incorporation, and Parent will promptly, and in any event no later than three Business Days, deliver the certified copy to Administrative Agent upon receipt thereof; and (vi) concurrently with the effectiveness of such re-incorporation, the successor to Parent will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such successor’s assumption of all of the Obligations of Parent and to comply with the provisions of the Loan Documents after giving effect to such re-incorporation;
(d) in connection with any Permitted Acquisition, any Significant Subsidiary may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided that (i) the Person surviving such merger will be a directly or indirectly wholly-owned Subsidiary of a Borrower and (ii) in the case of any such merger to which any Loan Party is a merger involving party, (A) such Loan Party is the Parent Borrowersurviving Person, or (B) if such Loan Party is not the surviving Person, then (1) such surviving Person formed by or surviving will be a Domestic Subsidiary, (2) the Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation is not and (3) concurrently with the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case effectiveness of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not consolidation, such Borrower (any surviving Person will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such surviving Person, the “Successor Subsidiary Borrower” and each ’s assumption of all of the Successor Parent Borrower Obligations of such merging or consolidating Loan Party and to comply with the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws provisions of the United States, any state thereof, Loan Documents (including the District requirements of Columbia Section 6.12) after giving effect to such merger or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: consolidation; and
(x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (Be) the Successor Borrower shall expressly assume all the obligations liquidation or dissolution of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agentany Subsidiary; provided that, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it that is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted (i) the Borrowers provide written notice to Administrative Agent at least ten days prior to the effectiveness of such liquidation or dissolution and (ii)(A) all assets and property of such Subsidiary may merge, amalgamate is transferred to another Loan Party or consolidate with any other Person in order (B) if such assets and property are transferred to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted another Subsidiary, which together (1) such recipient Subsidiary is a Domestic Subsidiary and (2) if such transfer of assets and property to such recipient Subsidiary results in the creation of a Material Subsidiary, upon the effectiveness of such transfer of assets or property the Borrowers will comply with each of its Restricted Subsidiaries, shall have complied Section 6.12 with the applicable requirements of Section 6.11 respect to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))such recipient Subsidiary.
Appears in 1 contract
Fundamental Changes. Merge(a) The Borrower will not, and will not permit any Subsidiary Loan Party to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, liquidateexcept that, consolidate if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) the Borrower may merge into a wholly owned Subsidiary of the Borrower for the sole purpose of effecting a change in the jurisdiction of organization of the Borrower, provided that (A) such Subsidiary is not a Foreign Subsidiary, (B) such Subsidiary is a corporation organized for the sole purpose of effecting a change in the jurisdiction of organization of the Borrower and, prior to the consummation of such merger, owns no Equity Interests in any entity, (C) after giving effect to such merger, such Subsidiary shall be the surviving entity and, for purposes of this Agreement and the other Loan Documents, shall be deemed to be the “Borrower” and shall succeed to the rights and obligations of the Borrower under this Agreement and the other Loan Documents, and such Subsidiary shall enter into an instrument in form and substance reasonably satisfactory to the Administrative Agent stating that it has become the “Borrower” and has succeeded to the rights and obligations of the Borrower under this Agreement and the other Loan Documents, (D) immediately after giving effect to such merger, each Person that was a shareholder of the Borrower prior to the consummation of such merger shall become a shareholder of such Subsidiary, and each such Person shall own Equity Interests in the reorganized Borrower having an aggregate voting power equal to those Equity Interests in the Borrower held by such Person prior to such merger, (E) the Administrative Agent shall have received notice of such merger 30 days prior to the consummation of such merger, (F) prior to the consummation of such merger, the Borrower shall have taken all actions necessary pursuant to Section 5.13 to cause the Collateral and Guarantee Requirement to be and remain satisfied after giving effect to the merger and (G) the Borrower and such Subsidiary shall deliver all legal opinions relating to the matters set forth in the preceding clauses (A) through (F) as may be reasonably requested by the Administrative Agent, (iii) any Subsidiary Loan Party may merge into any Subsidiary Loan Party in a transaction in which the surviving entity is a Subsidiary Loan Party, (iv) the Borrower may permit another Person to merge into it (A) in order to effect a Permitted Acquisition in which the Borrower is the surviving entity or (B) in any case where no Change in Control occurs as a result thereof, the Borrower is in compliance with or the covenants set forth in Sections 6.13 and 6.14 both before and after (and giving pro forma effect to) such transaction, and the Borrower is the surviving entity, (v) a Subsidiary Loan Party may merge into another Person, or Dispose of may permit another Person to merge into it, in order to effect a Permitted Acquisition in which the surviving entity is a Subsidiary Loan Party and (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 Transactions), except that:
(avi) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a BorrowerLicense Subsidiary) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in any such merger involving a transaction Person that is not a Loan Party, then (i) the transferee must wholly owned Subsidiary immediately prior to such merger shall not be a Loan Party or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted unless also permitted by Section 7.06 6.04.
(b) The Borrower will not, and will not permit any of the Subsidiary Loan Parties to, engage to any material extent in any business other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each businesses of the Successor Parent type conducted by the Borrower and the Successor Subsidiary Borrowers, Loan Parties on the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 Effective Date and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))related thereto.
Appears in 1 contract
Sources: Credit Agreement (Cumulus Media Inc)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into or wind up or convert 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 Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, consolidate or amalgamate with or consolidate with into, or convert or wind up into the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger merger, consolidation, amalgamation, conversion or consolidation winding up does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia, and (z) in the case of a merger, consolidation or amalgamation of Holdings with and into or converting or winding up 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, consolidation, amalgamation, conversion or winding up other than the Borrower and, after giving effect to such merger, consolidation, amalgamation, conversion or winding up, 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;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, consolidate or amalgamate or consolidate with or into or convert or wind up into any other Restricted Subsidiary of the Parent Borrower that is not a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge merge, consolidate or consolidate amalgamate with or into or convert or wind up into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger merger, consolidation, amalgamation, conversion or winding up the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate wind up, liquidate, convert or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and through (iiiiv) of this paragraph (b), that (A) no Event of Default would shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a permitted Investment in a Restricted Payment permitted by Subsidiary which is not a Loan Party in accordance with Section 7.06 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 7.06(b)(xix)) or a Permitted Investment9.5;
(d) so long as no Event of Default has occurred and is continuing or would result therefromexist immediately after giving effect thereto, any the Borrower may merge merge, consolidate or consolidate amalgamate with or into, or convert into, any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger merger, consolidation, amalgamation or consolidation conversion is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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, consolidation or amalgamation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, consolidation or amalgamation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, consolidation, amalgamation or consolidation conversion 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, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)exist immediately after giving effect thereto, any Restricted Subsidiary may merge, consolidate, amalgamate with or consolidate with into, or convert or wind up into any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).to
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 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 Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia 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 other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent (acting at the Direction of the Required Lenders);
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; , provided, in the case of clauses (ii) and through (iiiiv), that (A) no Event of Default would shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a permitted Investment in a Restricted Payment permitted by Section 7.06 Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.06(b)(xix7.02(e)) or a Permitted Investment);
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any the Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, SwitzerlandColumbia, (B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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 or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such 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, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom therefrom, Holdings may merge or consolidate with any other Person; provided that (in A) Holdings shall be the case of a continuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation involving is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”)
(A) the Successor Holdings 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 Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Party)Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) 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 Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(f) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 7.02 (other than Section 7.06(b)(xix7.02(e)) or a Permitted Investment); provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement6.11;
(g) [reserved]; and
(fh) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 1 contract
Sources: Credit Agreement (JOANN Inc.)
Fundamental Changes. MergeThe Parent and the Borrower will not, dissolve, liquidate, and will not permit any Subsidiary to:
(a) merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its the assets of the Borrower or all or substantially all of the stock of the Borrower’s Subsidiaries taken as whole (in each case, whether now owned or hereafter acquired) to ), or liquidate or dissolve (including, in favor each case of any Person (other than as part of the Transactionsforegoing, pursuant to a Series LLC Division), except that:
(a) any Restricted Subsidiary of , if at the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower time thereof and immediately after giving effect thereto no Default shall have occurred and be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) Person may mergemerge into, amalgamate or consolidate with with, Borrower or into any other Restricted Subsidiary of the Parent in a transaction in which Borrower that or the Parent is a Non-Loan Party, the surviving entity; (ii) any Restricted Subsidiary (other than Person not a Borrower) Credit Party may merge into, or consolidate with, any Subsidiary in a transaction in which the surviving entity (or each surviving entity with or into any other Restricted Subsidiary of the Parent Borrower that respect to a Series LLC Division) is a Loan PartySubsidiary, (iii) any merger Subsidiary not a Credit Party may sell, transfer, lease or otherwise dispose of its assets to the sole purpose of which is Borrower or to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and Subsidiary, (iv) any Restricted Subsidiary not a Credit Party may (other than a BorrowerA) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses or (iiB) merge with a third party, (v) any Subsidiary which is a Credit Party may merge into (or consolidate with) or liquidate or dissolve into, any other Subsidiary which is a Credit Party, and (iii)vi) any Subsidiary which is a Credit Party may sell, no Event transfer, lease or otherwise dispose of Default would result therefrom;its assets to Borrower or to any other Subsidiary which is a Credit Party.
(b) sell, transfer, lease or otherwise dispose of any of its assets to a Person other than pursuant to clause (a) above if the Value of the assets disposed of in any twelve (12) month period exceeds twenty-five percent (25%) of Total Asset Value of the Borrower, unless not less than ten (10) Business Days prior to any such disposition Borrower delivers to Administrative Agent a Compliance Certificate and Borrowing Base Certificate evidencing compliance with all terms and conditions set forth therein.
(c) enter into any Restricted Subsidiary merger (other than a Borrowerthe 2019 Merger) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent in which Borrower or another Restricted Subsidiary; Guarantor will not be the surviving entity or which would result in a Change in Control, and provided in each instance that if the transferor in Lenders have received all “know your customer” and other information as the Lenders may reasonably request with respect to 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 Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;merger.
(d) so long as no Event engage to any material extent in any business other than the ownership, development, operation and management of Default has occurred office, industrial, industrial and is continuing commercial storage, manufacturing, warehouse, distribution or would result therefromeducational properties (or mixed uses thereof) and businesses reasonably related or ancillary thereto without the prior written consent of the Lenders. For the avoidance of doubt, any Borrower Subsidiary, including any Subsidiary Guarantor, may merge change or consolidate with any other Person; provided that (i) in the case of convert its status as a merger or consolidation involving the Parent Borrowerlimited liability company, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrowerlimited partnership, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of other registered business organization form to become a merger involving the Parent Borrowerlimited liability company, if the Person formed by limited partnership, corporation or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))registered business organization form.
Appears in 1 contract
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary to, liquidatedirectly or indirectly, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of related transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Person (other than as part of the Transactions)dissolve, except that:
(a) any Restricted Subsidiary , if at the time thereof and immediately after giving effect thereto no Default or Event of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower Default shall have occurred and be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted wholly owned Subsidiary that may merge into the Borrower in a transaction in which the Borrower is a Non-Loan Party the surviving corporation, and (other than a Borrowerii) any wholly owned Subsidiary may merge, amalgamate or consolidate merge with or into any other Restricted wholly owned Subsidiary in a transaction in which the surviving entity is a Subsidiary and (if any party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party; provided that in connection with the foregoing, the appropriate Loan Parties shall take all actions necessary or reasonably requested by the Collateral Agent to maintain the perfection or perfect, as the case may be, protect and preserve the Liens on the Collateral granted to the Collateral Agent pursuant to the Security Documents and otherwise comply with the provisions of Sections 5.11 and 5.12, in each case, on the terms set forth therein and to the extent applicable.
(b) Notwithstanding the foregoing, any Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) may dispose of any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; any Subsidiary Loan Party (provided that if in connection with the transferor foregoing, the appropriate Loan Parties shall take all actions necessary or reasonably requested by the Collateral Agent to maintain the perfection or perfect, as the case may be, protect and preserve the Liens on the Collateral granted to the Collateral Agent pursuant to the Security Documents and otherwise comply with the provisions of Sections 5.11 and 5.12, in such a transaction is a Loan Partyeach case, then (i) on the transferee must be a Loan Party or (ii) terms set forth therein and to the extent constituting an Investmentapplicable), such Investment must be and any Subsidiary which is not a Restricted Payment permitted by Section 7.06 Subsidiary Loan Party may dispose of assets to any other Subsidiary which is not a Subsidiary Loan Party.
(c) The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, engage in any business other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each businesses of the Successor Parent type conducted by the Borrower and its Subsidiaries on the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 Second Lien Effective Date and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))related thereto.
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 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 Transactions)Person, except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized formed under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, after giving effect to such merger or consolidation, the direct parent of the Parent 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;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Non-Loan Party in another jurisdiction in the United States shall be permitted and (ivii) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party, then (i) the transferee must be a U.S. Loan Party Party, or (ii) to the extent constituting an InvestmentInvestment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or Subsidiary which is a Permitted InvestmentNon-U.S. Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefromtherefrom and the Parent Borrower would be in compliance with the financial covenant set forth in Section 7.15 (calculated on a Pro Forma Basis), any the Parent Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such the Parent Borrower under this Agreement and the other Credit Loan Documents to which such the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss U.S. Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss U.S. Guaranty confirmed that its guarantee Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each U.S. Loan Party (other than the Parent Borrower), unless it is the other party to such merger or consolidation, shall have by a supplement to the U.S. Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the Swiss Obligations applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such 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 Borrower will succeed to, and be substituted for, such the Parent Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any Person other Person than the Parent Borrower (i) in order to effect an Investment permitted pursuant to Section 7.06 7.02 or (ii) for any other than Section 7.06(b)(xix)) or a Permitted Investmentpurpose; provided that (A) the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.11; and (B) in the case of subclause (ii) only, if (1) the merger or 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 required under Administrative Agent and (2) the Collateral and Guarantee RequirementParent Borrower shall be in compliance with the financial covenant set forth in Section 7.15 (calculated on a Pro Forma Basis);
(f) [reserved]; and
(fg) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))7.05.
Appears in 1 contract
Sources: Credit Agreement (WP Prism 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 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 Transactions)Person, except that:
(a) any Restricted Subsidiary of the Parent may merge, amalgamate or consolidate with a Borrower and Holdings may merge, amalgamate or consolidate with the Parent Borrower (in each case including a mergermerger or amalgamation, the purpose of which is to reorganize the Parent a Borrower into a new jurisdiction); provided that (x) the Parent such Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent such Borrower ceasing to be organized incorporated under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger, amalgamation or consolidation other than the Parent Borrower and, after giving effect to such merger, amalgamation or consolidation, the direct parent of the Parent 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;
(b) (i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Non-Loan Party, Party and (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Co-Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a the Co-Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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 InvestmentInvestment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or Subsidiary which is not a Permitted InvestmentLoan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any either Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary such Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Parent a Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerlandthereof, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit 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) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss 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 or consolidation, shall have by a supplement to the applicable Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (DF) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing exists or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party)therefrom, any Restricted Subsidiary (other than the Co-Borrower) may merge, amalgamate merge or consolidate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.06 7.02 or (ii) for any other than Section 7.06(b)(xix)) or a Permitted Investmentpurpose; provided that (A) the continuing or surviving Person shall be the Parent a Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.11; and (B) in the case of subclause (ii) only, if the merger or 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 required under Administrative Agent;
(f) the Collateral Acquisition and Guarantee Requirementthe Reorganization may be consummated; and
(fg) so long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))7.05.
Appears in 1 contract
Sources: Credit Agreement (Axcan Intermediate Holdings Inc.)
Fundamental Changes. MergeThe Lead Borrower will not, nor will it permit any other Borrower or any Subsidiary Facility Guarantor to, merge, amalgamate, dissolve, liquidate, wind up, consolidate with or into another Person, or Dispose dispose of (whether in one transaction or in a series of 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 Transactions)Person, except that:
(a) any Restricted Subsidiary of the Parent Borrower may merge, consolidate or amalgamate with or consolidate with the Parent into, (i) any Borrower (including a merger, consolidation or amalgamation, the purpose of which is to reorganize such Borrower into a new jurisdiction); provided that such Borrower shall be the continuing or surviving Person or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging, consolidating or amalgamating with or into another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person, except to the extent otherwise constituting an Investment permitted by SECTION 6.02 (other than SECTION 6.02(e));
(b) the Lead Borrower may merge, consolidate or amalgamate with or into, any Person (including a merger, consolidation or amalgamation, the purpose of which is to reorganize the Parent Lead Borrower into a new jurisdiction); provided that (xA) the Parent Lead Borrower shall be the continuing or surviving Person, or (B) so long as no Event of Default has occurred and is continuing or would result therefrom, if the Person formed by or surviving any such merger, consolidation or amalgamation is not the Lead Borrower (ysuch other Person, the “Successor Lead Borrower”), (1) such merger the Successor Lead Borrower shall be an entity organized or consolidation does not result in the Parent Borrower ceasing to be organized existing under the Laws laws of the United States, any state thereof or the District of Columbia, (2) the Successor Lead Borrower shall expressly assume all the obligations of the Lead Borrower under this Agreement and the other Loan Documents in a manner and pursuant to documentation reasonably satisfactory to the Administrative Agent, (3) each Facility Guarantor or a Borrower, unless it is the other party to such merger, amalgamation or consolidation, shall have by execution of a supplement to its Facility Guarantee confirmed that its Guarantee thereunder shall apply to any Successor Lead Borrower’s obligations under this Agreement, (4) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to any applicable Security Document affirmed that its obligations thereunder shall apply to its Facility Guarantee as reaffirmed pursuant to clause (3), (5) each mortgagor pursuant to a Mortgage, if any, unless it is the other party to such merger, amalgamation or consolidation, shall have affirmed that its obligations under such Mortgage shall apply to its Facility Guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Lead Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate of a Responsible Officer stating that such merger, amalgamation, or consolidation complies with the applicable requirements set forth in this clause (b), (y) at least two Business Days prior to the closing date of such merger, amalgamation or consolidation all documentation and other information about Successor Lead Borrower as has been reasonably requested in writing by the Administrative Agent that it reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (z) if reasonably requested by the Administrative Agent, an opinion of counsel as to corporate matters and to the effect that the provisions set forth in the preceding clauses (3) through (5), preserve the enforceability of the Facility Guarantee and the perfection of the Liens created under the applicable Security Documents;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, provided that if a Borrower is a party thereto, a Borrower shall be the continuing or surviving Person and (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate liquidate, wind up or dissolve or change its legal form if the Parent Lead Borrower determines in good faith that such action is in the best interests of the Parent Lead Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided, in the case of clauses that with respect to this clause (ii) and (iiib)(iii), no Event a certificate of Default would result therefroma Responsible Officer shall be delivered to the Administrative Agent at least five Business Days (or within such shorter period as the Administrative Agent shall agree in writing, in its sole discretion) prior to the liquidation, winding up or dissolution, together with a reasonably detailed description of the material terms and conditions thereof, stating that the Lead Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement;
(cd) any Restricted Subsidiary (other than a Borrower) may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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 another Loan Party Party, or (ii) to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) Permitted Investment in or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case Indebtedness of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Restricted Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation which is not the Parent Borrower (any such Persona Loan Party in accordance with SECTION 6.02 and SECTION 6.03, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreementrespectively;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, consolidate or amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee RequirementSECTION 5.11; and
(f) so long as no Event of Default has occurred the Lead Borrower and is continuing or would result therefrom, its Restricted Subsidiaries may consummate a merger, consolidation, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))Permitted Disposition.
Appears in 1 contract
Fundamental Changes. Merge(a) Neither Parent nor the Borrower will, dissolvenor will they permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (whether in one transaction or i) any Subsidiary (other than a License Subsidiary) may merge into the Borrower in a series of related transactionstransaction in which the Borrower is the surviving corporation, (ii) 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:
(aa License Subsidiary) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge with or into or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a BorrowerLicense Subsidiary) may merge or consolidate with or into any other Restricted Subsidiary of in a transaction in which the Parent Borrower that surviving entity is a Subsidiary and (if any party to such merger is a Subsidiary Loan Party) the surviving entity is a Subsidiary Loan Party, (iii) any merger the sole purpose of which is Subsidiary may merge into or consolidate with any other Person or permit any other Person to reincorporate merge into or reorganize a Loan Party consolidate with it in another jurisdiction in the United States shall be any sale or other disposition permitted and under Section 6.05, (iv) any Restricted Subsidiary (other than a BorrowerLicense Subsidiary or other Subsidiary Loan Party) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in (v) ACS Television, L.L.C. and ACS Television License Sub, Inc. may liquidate or dissolve within 180 days of the case Effective Date, provided that (x) at the time of clauses (ii) such liquidation or dissolution, ACS Television, L.L.C. or ACS Television License Sub, Inc., as applicable, has no assets other than the assets held by it on the Effective Date and (iii)y) the Borrower determines in good faith that
(b) The Borrower will not, no Event and will not permit any of Default would result therefrom;the Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.
(c) Parent will not engage in any Restricted Subsidiary business or activity other than the ownership of all the outstanding shares of capital stock of the Borrower, the issuance of the Parent Discount Debentures and activities incidental thereto, including rental payments, computer services, professional and consultant services, investment services, printing, travel and other miscellaneous services. Parent will not own or acquire any assets (other than a shares of capital stock of the Borrower, cash and Permitted Investments) may Dispose of all or substantially all of its assets incur any liabilities (upon voluntary liquidation or otherwise) to other than liabilities under the Loan Documents, liabilities imposed by law, including tax liabilities, liabilities under the Parent Borrower Discount Debentures and other liabilities incidental to its existence and permitted business and activities).
(d) No License Subsidiary will engage in any business or another Restricted Subsidiary; provided that if activity other than holding the transferor applicable Operating License and activities incidental thereto.
(e) No License Subsidiary will sell, transfer, lease or otherwise dispose of any Operating License or any Authorization.
(f) ACS Media Holdings will not engage in such a transaction is a Loan Party, then any business or activity other than (i) the transferee must be a Loan Party or ownership and disposition of Equity Interests in ACS Media LLC, (ii) the exercise by ACS Media Holdings of its right, if it decides in its sole discretion to do so, to exchange Equity Interests in ACS Media LLC for trust units of ACS Media Income Fund pursuant to clause (h) of the definition of the term ACS Media Transaction and the subsequent ownership and disposition of such units, (iii) the issuance of and payment with respect to the extent constituting an InvestmentACS Media Holdings Notes and the issuance of Equity Interests in ACS Media Holdings to ACS InfoSource, such Investment must be a Restricted Payment permitted Inc., in each case as described in clause (a) of the definition of the term "ACS Media Transaction", and the distribution by Section 7.06 ACS Media Holdings to ACS InfoSource, Inc., of assets with respect to Equity Interests in ACS Media Holdings held by ACS InfoSource, Inc., (iv) the receipt of the ACS Media Business and the contribution of the ACS Media Business to ACS Media LLC, in each case as described in clauses (a) and (b) of the definition of the term "ACS Media Transaction", (v) the entry into the ACS Media Transaction Related Agreements and (vi) activities incidental to the foregoing. ACS Media Holdings will not own or acquire any assets (other than Section 7.06(b)(xix)the ACS Media Business, as described in clause (a) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefromthe definition of the term "ACS Media Transaction", Equity Interests in ACS Media LLC, any Borrower may merge distributions with respect to Equity Interests in ACS Media LLC or consolidate with any other Person; provided that (i) the units referred to in the case of a merger immediately preceding sentence, such units and cash or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party consideration obtained pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
clause (e) so long as no Event or (f) of Default has occurred the definition of the term "ACS Media Transaction" and is continuing any ACS Media Disposition) or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), incur any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 liabilities (other than Section 7.06(b)(xixliabilities under the Loan Documents, liabilities imposed by law, including tax liabilities, and other liabilities incidental to its existence and permitted business and activities)) or a Permitted Investment; provided , PROVIDED that ACS Media Holdings shall promptly distribute to the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 any Subsidiary Loan Party any assets obtained pursuant to the extent required under the Collateral clauses (e) and Guarantee Requirement; and
(f) so long as no Event of Default has occurred the definition of the term "ACS Media Transaction", any ACS Media Disposition and is continuing any distribution with respect to Equity Interests in ACS Media LLC or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose trust units of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))ACS Media Income Fund.
Appears in 1 contract
Fundamental Changes. Merge(a) The Parent and the Borrower will not, dissolveand will not permit any Subsidiary (other than subsidiaries of VR Partners until the Rockpoint Redemption) to, liquidate, merge into or consolidate with or into another any other Person, or permit any other Person to merge into or consolidate with it, or otherwise Dispose of (whether in one transaction all, or in a series substantially all, of related transactions) its assets, or all or substantially all of the stock of any of its assets Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, or divide into two or more Persons, including becoming a Delaware Divided LLC (whether or not the original Person survives such division), or create, or reorganize into, one or more series pursuant to a Delaware LLC Division or otherwise, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) to or any Subsidiary (other than a Subsidiary Guarantor that owns a Collateral Pool Property) may merge into the Borrower in favor of a transaction in which the Borrower is the surviving corporation and there is no Change in Control, (ii) any Person (other than as part of a Subsidiary Guarantor that owns a Collateral Pool Property) may merge into any Subsidiary in a transaction in which the Transactions)surviving entity is a Subsidiary and there is no Change in Control, except that:
(aiii) any Restricted Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a BorrowerSubsidiary Guarantor that owns a Collateral Pool Property) may merge Dispose of its assets to the Borrower or consolidate with or into any other Restricted to another Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a BorrowerSubsidiary Guarantor that owns a Collateral Pool Property) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided
(b) The Parent and 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 case type conducted by the Borrower and its Subsidiaries on the date of clauses (ii) execution of this Agreement and (iii), no Event of Default would result therefrom;businesses reasonably related thereto.
(c) any Restricted Subsidiary (The Borrower and the Parent will not permit their fiscal years to end on a day other than a December 31 or change the Borrower) may Dispose ’s or the Parent’s method of all or substantially all of determining its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;fiscal quarters.
(d) so long as no Event The Parent shall not directly own or acquire any Real Estate, and the Parent shall not conduct any substantial business activities other than the direct or indirect ownership of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) Equity Interests in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing its Subsidiaries and ancillary or surviving corporation and incidental business in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e))connection therewith.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Veris Residential, L.P.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, or Dispose of (whether in one transaction or in effect 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 Transactions)Division, except that:
(a) Holdings and Holdings GP may merge, consolidate or amalgamate with the US Borrower, and any Restricted Subsidiary of the Parent Borrower may merge, consolidate or amalgamate or consolidate with the Parent a Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the Parent such Borrower into a new jurisdiction); provided that that:
(xi) the Parent a Borrower shall be the continuing or surviving Person, and ;
(yii) such merger merger, amalgamation or consolidation does not result in the Parent US Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia or the Canadian Borrower ceasing to be organized under the Laws of Canada or any province or territory thereof; and
(iii) in the case of a merger, amalgamation or consolidation of Holdings or Holdings GP with and into the US Borrower, (A) no Event of Default shall exist at such time or after giving effect to such merger, amalgamation or consolidation, (B) Holdings or Holdings GP, as applicable, 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 US Borrower under this Agreement at such time, (C) Holdings shall have no direct Subsidiaries at the time of such merger, amalgamation or consolidation other than the US Borrower and Holdings GP, (D) after giving effect to such merger, amalgamation or consolidation, the direct parent of the US 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 US Borrower shall concurrently become a Guarantor and pledge 100% of the Equity Interest of the US Borrower to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent;
(ib) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, Subsidiary;
(iiic) any merger or amalgamation the sole purpose of which is to reincorporate or reorganize a Loan Party Restricted Subsidiary in another jurisdiction shall be permitted; provided that, in the United States case of any Foreign Subsidiary that is a Loan Party, such reincorporation or reorganization shall be permitted and subject to the prior written consent of the Administrative Agent not to be unreasonably withheld;
(ivd) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; providedform, in the case of clauses provided (iii) and (iii), no Event of Default would 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;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent 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, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(de) so long as no Event of Default has occurred and is continuing exists or would result therefrom, any a Borrower may merge merge, amalgamate or consolidate with any other Person; provided that that:
(i) in the case of a merger or consolidation involving the Parent Borrower, the Parent such Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or corporation; or
(ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Personmerger, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger amalgamation or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ;
(A) in (i) if the case of a merger involving merging, amalgamating or consolidating Borrower is the Parent US Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia and (ii) if the merging, amalgamating or any territory thereof and in consolidating Borrower is the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Canadian Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, Canada or any province or territory thereof;
(B) the Successor Borrower shall expressly assume all the obligations of such Borrower under this Agreement and the other Credit 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) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee Guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and ;
(D) each Loan Party, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to the applicable Security Agreement 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;
(E) if requested by the Collateral 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 Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement; and
(F) such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral 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; provided, further, it being agreed that if the foregoing are satisfied, the Successor Borrower ▇▇▇▇▇▇▇▇ will succeed to, and be substituted for, such Borrower under this Agreement;
(ef) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate merge 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 permitted pursuant to Section 7.06 7.02(o));
(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 a Borrower, then each surviving or resulting Person shall constitute a “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 such Borrower immediately prior to such Division and otherwise comply with Section 7.04(e);
(ii) if a Division is conducted by Holdings or Holdings GP, then all of the Equity Interests of the US Borrower held by Holdings or Holdings GP, as applicable, immediately prior to such Division must be owned by only one Person that survives or results from such Division, and such Person owning such Equity Interests in the US Borrower shall otherwise comply with Section 7.10(b)(ii), become a Guarantor and pledge 100% of the Equity Interests of the US Borrower held by it to the Collateral Agent; and
(iii) if a Division is conducted by a Loan Party other than a Borrower, Holdings or Holdings GP, 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 7.05 (other than Section 7.06(b)(xix7.05(e)) or otherwise would constitute an Excluded Subsidiary; provided, further that such surviving or resulting Person not becoming a Permitted Investment; provided that 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 the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of permitted under this Section 6.11 7.04(g)(iii) solely to the extent required permitted under the Collateral and Guarantee Requirement; andSection 7.02 (other than by Section 7.02(o));
(fh) so as long as no Event of Default has occurred and is continuing exists or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)); and
(i) the Transactions may be consummated. Notwithstanding anything herein to the contrary, in the event of any merger, amalgamation, dissolution, liquidation, consolidation, amalgamation or Division of any Loan Party or a Restricted Subsidiary effected in accordance with this Section 7.04, the Borrowers shall (x) promptly deliver or cause to be delivered to the Administrative Agent for further distribution by the Administrative Agent to each Lender and the Revolving Agent (1) such information and documentation reasonably requested by the Administrative Agent, the Revolving 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 Canadian AML Legislation and (2) a Beneficial Ownership Certification and (y) do, execute, acknowledge, deliver, record, re-record, file, re-file, register, re-register, publish and re-publish any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent or Collateral Agent may reasonably request in order to perfect or continue the perfection of the Liens granted or purported to be granted by the Collateral Documents in accordance with Section 6.11 and as promptly as practicable.
Appears in 1 contract
Fundamental Changes. Merge(a) The Borrower may not consolidate, dissolve, liquidate, consolidate merge or amalgamate with or into another Person, or Dispose of wind up into (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 not the TransactionsBorrower is the surviving corporation), except that:
(a) any Restricted Subsidiary of and the Parent Borrower may mergenot sell, amalgamate assign, transfer, lease, convey or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia;
(i) any Restricted Subsidiary that is a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose otherwise dispose of all or substantially all of the properties or assets of the Borrower and its assets (upon voluntary liquidation Restricted Subsidiaries, taken as a whole, in one or otherwise) more related transactions, to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then any Person unless:
(i) the transferee must be a Loan Party or (ii) to Borrower is the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such consolidation, merger or consolidation is not amalgamation (if other than the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by to whom such sale, assignment, transfer, lease, conveyance or surviving any such merger or consolidation other disposition will have been made is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, 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 and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower(such Person, the “Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: Company”);
(x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (Bii) the Successor Borrower shall Company, if other than the Borrower, expressly assume assumes all the obligations Obligations of such the Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form documentation reasonably satisfactory to the Administrative Agent, ; and
(Ciii) in the case of any such transaction involving Swiss each Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidationthe transactions described above, in which case clause (i)(B) of Section 6.04(c) shall apply, shall have by a supplement to the Swiss Guaranty confirmed that its guarantee of Obligations under the Swiss Obligations shall apply applicable Loan Documents to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered which it is a party pursuant to documentation reasonably satisfactory 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 AgreementAgent; provided, further, that if the foregoing are satisfied, the The Successor Borrower Company will succeed to, and be substituted for, such for the Borrower under this Agreement;the Loan Documents.
(eb) Subject to the other provisions of Section 6.04(a),
(i) a Restricted Subsidiary may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to (A) the Borrower or any other Restricted Subsidiary or (B) any other Person so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to transaction does not violate Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement6.05; and
(fii) the Borrower may merge with an Affiliate of the Borrower solely for the purpose of reorganizing the Borrower in a different State of the United States, so long as no Event the amount of Default has occurred Indebtedness of the Borrower and its Restricted Subsidiaries is continuing not increased thereby.
(c) No Subsidiary Guarantor will, and the Borrower will not permit any Subsidiary Guarantor to, consolidate, merge or would result therefromamalgamate with or into or wind up into (whether or not the Borrower or a Subsidiary Guarantor is the surviving corporation), a mergeror 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 unless:
(i) (A) such Subsidiary Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation, amalgamationmerger or amalgamation (if other than such Subsidiary Guarantor) or to which such sale, dissolutionassignment, liquidationtransfer, consolidation lease, conveyance or Dispositionother disposition will have been made is organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or the laws of the United States, any state thereof, the purpose District of which is to effect a Disposition permitted pursuant to Section 7.05 Columbia, or any territory thereof (other than Section 7.05(esuch Subsidiary Guarantor or Person, the “Successor Subsidiary Person”)).; and
Appears in 1 contract
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or dispose of (whether in one transaction or in a series of 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 Transactions), except that:
(a1) Subject to clause (g) of Section 4.1 of the Security Agreement, Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, and ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and
(c) in the case of a merger or consolidation of Holdings with and into the Borrower,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower,
(iii) no Default or Event of Default exists at such time or after giving effect to such transaction and
(iv) after giving effect to such transaction, the direct parent of the Borrower will (A) 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 the Borrower and (B) pledge 100% of the Equity Interest of the Borrower to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and the Borrower;
(ia) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party,
(b) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party, ; provided that a Loan Party shall be the continuing or surviving Person;
(iiic) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall will be permitted and and
(ivd) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, provided that in the case of clauses (iib) and through (iiid), (x) no Event of Default would shall result therefromtherefrom and (y) the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or the definition of “Permitted Investments”;
(c3) any Restricted Subsidiary (other than a Borrower) may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (ix) the transferee must be a Loan Party or (iiy) to the extent constituting an Investment, such Investment must be a Permitted Investment in a Restricted Payment Subsidiary which is not a Loan Party in connection with any Investment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investmenthereunder;
(d4) so long as no Event of Default has occurred and is continuing or would result therefromtherefrom (subject to Section 1.07(8)), any the Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (iib) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ):
(i) the Successor Borrower will:
(A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, Columbia,
(B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent and the Borrower and
(C) in deliver to the case Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (II) an Opinion of any Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent;
(ii) substantially contemporaneously with such transaction involving Swiss Subsidiary Borrower, (or at a later date as agreed by the Administrative Agent),
(A) each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Swiss Guaranty confirmed (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guaranty of the Obligations (including the Successor Borrower’s obligations under this Agreement),
(B) each Loan Party, unless it is the other party to such merger or consolidation, will, by a supplement to the Security Agreement (or in another form reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder,
(C) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, will, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent and the Borrower), confirm that its guarantee of the Swiss Obligations obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement; and
(iii) after giving pro forma effect to such incurrence, and the Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in clause (DA) such Borrower shall have delivered to of Section 7.02(a); or
(iv) the Administrative Agent an officer’s certificate shall have received at least three (3) Business Days prior to the such transaction all documentation and an opinion other information in respect of counselthe Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreementincluding the USA PATRIOT Act; provided, further, provided further that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such the Borrower under this Agreement;
(e5) so long as no Event of Default has occurred and is continuing exists or would result therefrom (subject to Section 1.07(8)), Holdings may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) Holdings will be the continuing or surviving Person or (b) if:
(i) the Person formed by or surviving any such merger or consolidation is not Holdings,
(ii) Holdings is not the Person into which the applicable Person has been liquidated or
(iii) in connection with a disposition of all or substantially all of Holdings’ assets, the Person that is the transferee of such assets is not Holdings (any such Person described in the case preceding clauses (i) through (iii), a “Successor Holdings”), then the Successor Holdings will:
(A) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(B) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a mergerparty pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower,
(C) (I) 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 the Borrower and (II) pledge 100% of the Equity Interests of the Borrower to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrower,
(D) if requested by the Administrative Agent, amalgamation deliver, or cause the Borrower to deliver, to the Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation involving a Loan Party)or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this Agreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; and
(iv) the Administrative Agent shall have received at least three (3) Business Days prior to the such transaction all documentation and other information in respect of the Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided further that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(6) any Restricted Subsidiary may merge, amalgamate merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect an a Permitted Investment or other investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment7.05; provided that solely in the case of a merger or consolidation involving a Loan Party and subject to Section 1.07(8), no Event of Default exists or would result therefrom; provided further that the continuing or surviving Person shall will be (a) the Parent Borrower or (b) a Restricted SubsidiaryLoan Party, in each case, which together with each of its Restricted Subsidiaries, shall will have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and6.11;
(f7) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Dispositiondisposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.05 7.04 (other than under clause (2)(c) of the definition of “Asset Sale”);
(8) subject to clause (g) of Section 7.05(e))4.1 of the Security Agreement, the Borrower may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name; and
(9) the Loan Parties and the Restricted Subsidiaries may consummate the Transactions. Upon consummation of the Merger, Life Time will succeed to, and be substituted for, and may exercise every right and power of, Merger Sub hereunder. Notwithstanding anything in this Agreement to the contrary, the merger of Merger Sub with and into Life Time on the Closing Date as described in the Transaction Agreement will be permitted hereunder, and no supplement or other deliverable will be required in connection therewith.
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Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or dispose of (whether in one transaction or in a series of 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 Transactions)Person, except that:
(a1) Holdings or any Restricted Subsidiary of the Parent Borrower may merge, amalgamate merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, and ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of ColumbiaColumbia and
(c) in the case of a merger or consolidation of Holdings with and into the Borrower,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower,
(iii) no Event of Default exists at such time or after giving effect to such transaction and
(iv) after giving effect to such transaction, a direct parent of the Borrower will (A) 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 the Borrower and (B) pledge 100% of the Equity Interests of the Borrower to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and the Borrower;
(i2) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party,
(a) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party, ; provided that a Loan Party shall be the continuing or surviving Person;
(iiib) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall will be permitted and permitted; and
(ivc) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, provided that in the case of clauses clause (ii) and (iiic), no Event the Person who receives the assets of Default would result therefromsuch dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or the definition of “Permitted Investments”;
(c3) any Restricted Subsidiary (other than a Borrower) may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (i) the transferee must be any disposition by a Loan Party or (ii) shall be to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investmentanother Loan Party;
(d4) so long as no Event of Default has occurred and is continuing or would result therefrom, any the Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (iib) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), ):
(i) the Successor Borrower will:
(A) in the case of a merger involving the Parent Borrower, the Successor Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, Columbia,
(B) the Successor Borrower shall expressly assume all the obligations of such the Borrower under this Agreement and the other Credit Loan Documents to which such the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent and the Borrower and
(C) in deliver to the case Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement, (II) an updated pro forma Borrowing Base Certificate reflecting Excess Availability of any at least 10% of the Borrowing Base after giving effect to such transaction involving Swiss Subsidiary Borrowerand (III) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent;
(ii) substantially contemporaneously with such transaction (or at a later date as agreed by the Administrative Agent),
(A) each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Swiss Guaranty confirmed that (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its guarantee Guaranty of the Swiss Obligations shall apply to (including the Successor Borrower’s obligations under this Agreement),
(B) each Loan Party, and unless it is the other party to such merger or consolidation, will, by a supplement to the Security Agreement (D) such Borrower shall have delivered or in another form reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder,
(C) [reserved];
(iii) after giving pro forma effect to such incurrence, the Borrower would be permitted to incur at least $1.00 of additional Permitted Ratio Debt; and
(iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent an officer’s certificate shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and an opinion other information in respect of counselthe Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreementincluding the USA PATRIOT Act; provided, further, provided further that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, such the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f5) so long as no Event of Default has occurred and is continuing or would result therefrom, Holdings may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) Holdings will be the continuing or surviving Person or (b) if:
(i) the Person formed by or surviving any such merger or consolidation is not Holdings,
(ii) Holdings is not the Person into which the applicable Person has been liquidated or
(iii) in connection with a disposition of all or substantially all of Holding’s assets, the Person that is the transferee of such assets is not Holdings (any such Person described in the preceding clauses (i) through (iii), a “Successor Holdings”), then the Successor Holdings will:
(A) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(B) 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 the Borrower,
(C) pledge 100% of the Equity Interests of the Borrower held by such Successor Holdings to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrower,
(D) if requested by the Administrative Agent, deliver, or cause the Borrower to deliver, to the Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this Agreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; and
(i) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided further that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(6) any Restricted Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other investment permitted pursuant to Section 7.05; provided that solely in the case of a merger or consolidation involving a Loan Party, no Event of Default exists or would result therefrom; provided further that the continuing or surviving Person will be (a) the Borrower or (b) a Loan Party;
(7) a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Dispositiondisposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.05 7.04 or a disposition that does not constitute any Asset Sale (other than Section 7.05(ea transaction described in clause (b) of the definition of Asset Sale)); provided that as a result of any such merger, dissolution, liquidation, consolidation or disposition involving a Loan Party, any assets of such Loan Party shall be disposed of to another Loan Party; and
(8) subject to complying with the Collateral and Guarantee Requirement, the Borrower, Holdings and any Restricted Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name.
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