Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that: (a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02; (i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents); (c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively; (d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act; (e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment; (f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and (g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (YRC Worldwide Inc.), Term Loan Credit Agreement (YRC Worldwide Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, amalgamate or consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, merge or amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided , provided, that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in Person or the Borrower ceasing to surviving Person shall be a Person organized and existing under the laws of the United States, States or any State state thereof or and shall expressly assume the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority obligations of the Liens granted under Borrower pursuant to documents reasonably acceptable to the Collateral Documents Administrative Agent or (ii) any one or more other Restricted Subsidiaries; , provided, in the case of this clause (ii), that when the Borrower, a U.S. Guarantor or a Canadian Guarantor is merging with another Restricted Subsidiary, the Borrower, U.S. Guarantor or Canadian Guarantor, as applicable (and if such transaction merger involves both the Borrower and a Loan PartyU.S. Guarantor or a Canadian Guarantor, the Borrower) shall be the continuing, surviving or succeeding Person or (B) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02in accordance with Sections 7.02 and 7.03;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the First Lien Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the its Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Subsidiary that is a Guarantor, such Guarantor Subsidiary shall at or before the time of such dissolution transfer its assets to another Subsidiary that is a Loan Party, Guarantor; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, merge or amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided provided, that either (xi) the continuing continuing, surviving or surviving succeeding Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 6.12 or (ii) to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute constituting an Investment, such Investment must be a permitted Investment;Investment in accordance with Section 7.02; and
(fe) any Restricted Subsidiary may effect a merger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
7.05 (g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under other than Section 7.057.05(f)(A)).
Appears in 2 contracts
Sources: First Lien Credit Agreement (GMS Inc.), Amendment No. 6 (GMS Inc.)
Fundamental Changes. (a) The Borrower shall will not, nor shall it and will not permit any Restricted Subsidiary to, directly merge into or indirectly, merge, dissolve, liquidate, 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 assets (in each case, whether now owned or hereafter acquired) to ), or in favor of any Personliquidate or dissolve, except that, provided that both immediately before and after giving effect thereto, no Event of Default shall or would exist:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a mergermay merge or consolidate with any Person, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (xA) the Borrower shall be the continuing surviving entity thereof, (B) the Borrower shall have satisfied the notice requirements in Section 6.1(e) with respect thereto, and (C) immediately after giving effect thereto, the Loan Parties shall be in compliance on a pro forma basis with all Financial Covenants as of the most recent fiscal quarter end (assuming, for purposes of the Financial Covenants, that all mergers, acquisitions and dispositions consummated since the first day of such fiscal quarter, had occurred on the first day of such fiscal quarter);
(ii) the Borrower may merge or consolidate with any Subsidiary Guarantor, provided that the Borrower shall be the surviving entity;
(iii) [Reserved];
(A) any Subsidiary may merge or consolidate with or into the Borrower in a transaction in which the Borrower is the surviving Person, (yB) such any Subsidiary Guarantor may merge or consolidate with or into any Subsidiary in a transaction does not result in which a Subsidiary Guarantor is the Borrower ceasing to be organized under the laws of the United Statessurviving Person, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(iC) any Restricted Excluded Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an including another Excluded Subsidiary) in a transaction in which such other Subsidiary is the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)surviving Person;
(cv) any Restricted Subsidiary may Dispose merge or consolidate with any other Person, provided that (A) immediately after giving effect thereto, no Default shall or would exist, and (B) either (1)(a) such Subsidiary is the surviving Person, and (b) such merger or consolidation is not prohibited by Section 7.5, or (2)(a) such other Person is the surviving Person, and (b)(i) such merger or consolidation is not prohibited by Section 7.7, or (ii) such merger or consolidation is not prohibited by Section 7.5 and such other Person shall become a Subsidiary Guarantor in accordance with Section 6.11;
(vi) (A) the Borrower may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a any Subsidiary Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto any Subsidiary Guarantor may sell, transfer, lease or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets to the Borrower or to any other Subsidiary Guarantor (upon voluntary liquidation or dissolution or otherwise), and (C) any Excluded Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the extent Borrower or any Subsidiary (upon voluntary liquidation or dissolution or otherwise);
(vii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets in a transaction that is not otherwise permitted by this Section 7.3(a), provided that such Disposition sale, transfer, lease or other disposition is permitted by Section 7.7; and
(viii) any Subsidiary may liquidate, wind up or series dissolve so long as (A) the assets of any such Subsidiary that is a Subsidiary Guarantor are transferred to the Borrower or another Subsidiary Guarantor, or (B) the assets of any such Subsidiary that is an Excluded Subsidiary are transferred to the Borrower or a Subsidiary.
(b) The Borrower will not, and will not permit any Subsidiary thereof to, engage in any business other than businesses of the type conducted by the Borrower and the Subsidiaries on the Closing Date, the ownership of the Equity Interests of any Liberty Subsidiary or the Contributed Ventures Assets, and businesses which are now, or which in the future shall have become, reasonably related Dispositions) is not prohibited under Section 7.05thereto or a reasonable extension thereof.
Appears in 2 contracts
Sources: Credit Agreement (Gci Liberty, Inc.), Credit Agreement (Gci, LLC)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided , provided, that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in Person or the Borrower ceasing to surviving Person shall be a Person organized and existing under the laws of the United States, States or any State state thereof or and shall expressly assume the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority obligations of the Liens granted under Borrower pursuant to documents reasonably acceptable to the Collateral Documents Administrative Agent or (ii) any one or more other Restricted Subsidiaries; , provided, in the case of this clause (ii), that when such transaction involves a Loan Partyany Guarantor is merging with another Restricted Subsidiary, a Loan Party (A) the Guarantor shall be the continuing or surviving Person except or (B) to the extent otherwise constituting an Investment, such Investment must be a permitted by Section 7.02Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the Second Lien Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Subsidiary that is a Guarantor, such Guarantor Subsidiary shall at or before the time of such dissolution transfer its assets to another Subsidiary that is a Loan Party, Guarantor; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower any Restricted Subsidiary may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided provided, that either (xi) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 6.12 or (ii) to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute constituting an Investment, such Investment must be a permitted Investment;Investment in accordance with Section 7.02; and
(fe) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
7.05 (g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under other than Section 7.057.05(f)(A)).
Appears in 2 contracts
Sources: Second Lien Credit Agreement (GMS Inc.), Second Lien Credit Agreement (At Home Group Inc.)
Fundamental Changes. The Borrower None of the Covenant Parties or any of their Restricted Subsidiaries shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transaction), except that:
(a) any Restricted Subsidiary (other than a Borrower) may merge, amalgamate or consolidate merge with (i) the any Borrower (including a merger, the purpose of which is to reorganize the such Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the such Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Person or (ii) any Covenant Party or one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary (other than a Covenant Party) may liquidate or dissolve or change its legal form if the Borrower N▇▇▇▇▇▇ determines in good faith that such action is in the best interest of the Borrower N▇▇▇▇▇▇ and the Restricted its Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Covenant Party or Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower a Covenant Party or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively;; and
(d) so long as no Event of Default exists or would result therefrom, the any Borrower may merge with any other Person; provided that (i) the such Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the such Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect or any territory thereof (or, in any material respect on the perfection or priority case of the Liens granted Dutch Borrower, an entity organized or existing under the Collateral Documentslaws of The Netherlands), (B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Propertymortgaged property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (F) the such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;and
(e) so long as no Default exists or would result therefrom, any Covenant Party or any Restricted Subsidiary (other than a Borrower) may merge, amalgamate or consolidate merge with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Covenant Party or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;6.11; and
(f) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 2 contracts
Sources: Credit Agreement (Nielsen CO B.V.), Credit Agreement (Nielsen Holdings N.V.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided , provided, that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in Person or the Borrower ceasing to surviving Person shall be a Person organized and existing under the laws of the United States, States or any State state thereof or and shall expressly assume the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority obligations of the Liens granted under Borrower pursuant to documents reasonably acceptable to the Collateral Documents Administrative Agent or (ii) any one or more other Restricted Subsidiaries; , provided, in the case of this clause (ii), that when such transaction involves a Loan Partyany Guarantor is merging with another Restricted Subsidiary, a Loan Party (A) the Guarantor shall be the continuing or surviving Person except or (B) to the extent otherwise constituting an Investment, such Investment must be a permitted by Section 7.02Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the First Lien Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Subsidiary that is a Guarantor, such Guarantor Subsidiary shall at or before the time of such dissolution transfer its assets to another Subsidiary that is a Loan Party, Guarantor; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 7.02 and 7.037.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower any Restricted Subsidiary may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.027.02; provided provided, that either (xi) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 6.12 or (ii) to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute constituting an Investment, such Investment must be a permitted Investment;Investment in accordance with Section 7.02; and
(fe) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
7.05 (g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under other than Section 7.057.05(f)(A)).
Appears in 2 contracts
Sources: First Lien Credit Agreement (Evoqua Water Technologies Corp.), First Lien Credit Agreement (Evoqua Water Technologies Corp.)
Fundamental Changes. The Lead Borrower or any of the Restricted Subsidiaries shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, not merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (including, in each case, pursuant to a Division), except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Lead Borrower (including a merger, the purpose of which is to reorganize the Lead Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Lead Borrower shall be the continuing or surviving Person, (y) Person and such transaction merger does not result in the Lead Borrower ceasing to be a corporation, partnership or limited liability company organized under the laws Laws of the United States, any State state thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or any Borrower or any Subsidiary may change its legal form (x) if the Lead Borrower determines in good faith that such action is in the best interest of the Lead Borrower and the Restricted its Subsidiaries and is if not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than Section 7.02(e)) or Section 7.05 or, in the case of any material respect such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Lead Borrower or to another any other Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the a Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the any Borrower may merge or consolidate with any other Person; provided that (i) the such Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the such Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction (other than the Dutch Borrower, which shall not have an adverse effect remain organized in any material respect on the perfection or priority of the Liens granted under the Collateral DocumentsNetherlands), (B) the Successor Borrower shall expressly assume all the obligations of the applicable Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee Guaranty shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral 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 Collateral Administrative Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the applicable Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion 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; provided further, that if the foregoing are satisfied (or waived), the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents and (G) the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the such Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;PATRIOT Act and the Beneficial Ownership Regulation; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the applicable Borrower under this Agreement; and
(e) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Lead Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted InvestmentRequirement;
(f) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05;
(g) [Reserved];
(h) [Reserved]; and
(gi) any Restricted Subsidiary the Lead Borrower and its Subsidiaries may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05consummate Permitted Intercompany Activities.
Appears in 2 contracts
Sources: Credit Agreement (CONDUENT Inc), Credit Agreement (CONDUENT Inc)
Fundamental Changes. The Neither the Borrower nor any of the Subsidiaries shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) Person and such transaction merger does not result in the Borrower ceasing to be a corporation, partnership or limited liability company organized under the laws Laws of the United States, any State state thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted its Subsidiaries and is if not materially disadvantageous to the Lenders and (y) to the extent such Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than 7.02(e)) or 7.05 or, in the case of any material respect such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;; and
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (FE) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion 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 provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;and
(e) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;Requirement; and
(f) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 2 contracts
Sources: Credit Agreement (Red Lion Hotels CORP), Credit Agreement (Red Lion Hotels CORP)
Fundamental Changes. The (a) Neither STX nor the Borrower shall notwill, nor shall it and will not permit any Restricted Subsidiary of their respective Subsidiaries to, directly merge into or indirectly, merge, dissolve, liquidate, consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with STX or the Borrower or any of their respective Subsidiaries, or liquidate or dissolve, nor will STX or the Borrower sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all the assets of its assets the Borrower and the Subsidiaries, taken as a whole (whether now owned directly or hereafter acquired) to through the sale, transfer, lease or in favor other disposition of any Personthe assets of one or more Subsidiaries), except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Person may merge with STX or the Borrower (including in a merger, transaction in which the purpose of which surviving entity is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists Person organized or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized existing under the laws of the United StatesStates of America, any State thereof or thereof, the District of Columbia and (z) or Ireland or the Cayman Islands and, if such transaction does surviving entity is not have an adverse effect STX or the Borrower, as the case may be, such Person expressly assumes, in any material respect on writing, all the perfection obligations of STX or priority of the Liens granted Borrower, as the case may be, under the Collateral Loan Documents or (ii) one or more other Restricted Subsidiaries; providedand provides the Lenders with requisite “know-your-customer” information as reasonably requested by a Lender, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Person may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary and (if any party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party and any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders Lenders, provided that any such merger involving a Person that is not a wholly-owned Subsidiary of the Borrower immediately prior to such merger shall not be permitted unless also permitted by Sections 6.04 and 6.
(b) Each of STX and the Borrower will not, and will not permit any of its subsidiaries to, engage to any material extent in any material respect (it being understood that (business other than a transaction constituting a permitted Investment under Section 7.02 (i) businesses of the type conducted by STX, the Borrower and the Subsidiaries on the date of execution of this Agreement and businesses reasonably related, ancillary or involving an Excluded Subsidiarycomplementary thereto and (ii) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted SPE Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05Permitted Receivables Financings.
Appears in 2 contracts
Sources: Second Amendment and Joinder Agreement (Seagate Technology PLC), Credit Agreement (Seagate Technology PLC)
Fundamental Changes. The (a) Each of the Parent and the Borrower shall will not, nor shall it and will not permit any Restricted Subsidiary to, directly merge into or indirectly, merge, dissolve, liquidate, 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 assets assets, or all or substantially all of the stock of any of the Restricted Subsidiaries (in each case, whether now owned or hereafter acquired) ), except as permitted pursuant to Section 6.13, or in favor of any Personliquidate or dissolve, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with 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 the Parent or the Borrower (including in a mergertransaction in which the Parent or the Borrower, respectively, is the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (yii) such any Person may merge into any Guarantor in a transaction does not result in which the surviving entity is wholly-owned, directly or indirectly, by the Borrower ceasing and such surviving entity is such Guarantor or expressly assumes in writing (in form and substance satisfactory to be organized the Administrative Agent) all obligations of such Guarantor under the laws of the United StatesLoan Documents, (iii) any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) may merge into any Restricted Subsidiary that is not a Loan Party may mergeGuarantor in a transaction in which the surviving entity is wholly-owned, amalgamate directly or consolidate indirectly, by the Borrower and, if such surviving entity constitutes a Material Domestic Subsidiary, the Parent, the Borrower and such surviving entity comply with or into the requirements of Section 5.13, (iv) any other Restricted Subsidiary that is not a Loan Party may sell, transfer, lease or otherwise dispose of its assets to the Parent, the Borrower or another Restricted Subsidiary and (iiv) any Restricted Subsidiary may liquidate or dissolve if the Parent or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interest interests of the Parent and the Borrower and is not materially disadvantageous to the Lenders; provided that any such merger involving a Person that is not a wholly-owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04.
(b) The Parent and the Borrower will not, and will not permit any Restricted Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Parent, the Borrower and the Restricted Subsidiaries on the date of execution of this Agreement and is not disadvantageous to businesses reasonably related thereto. From and after the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in date hereof, the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan PartyParent and the Borrower will not, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) permit any Restricted Subsidiary may Dispose of all to, acquire or substantially all of its assets make any other expenditures (upon voluntary liquidation whether such expenditure is capital, operating or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness related to any Oil and Gas Properties not located within the geographical boundaries of a Restricted the United States or form or acquire any Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with organized under any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws jurisdiction outside of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 2 contracts
Sources: Credit Agreement (Penn Virginia Corp), Credit Agreement (Penn Virginia Corp)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, amalgamate, consolidate with or into another Person, consummate a Division as the Dividing Person or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, (other than in the case of clause (e)) so long as no Event of Default would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (w) no Event of Default exists or would result therefrom, (xA) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be a Person organized under the laws of the United States, any State state thereof or the District of Columbia Columbia, and (zB) the surviving Person shall provide any documentation and other information about such transaction does not Person as shall have an adverse effect been reasonably requested in writing by any material respect on Lender through the perfection or priority Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the Liens granted under the Collateral Documents USA PATRIOT Act, or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause provided that (ii), x) any Restricted Subsidiary that when is not a Controlled Foreign Subsidiary or FSHCO may not merge with any Restricted Subsidiary that is a Controlled Foreign Subsidiary or FSHCO if such transaction involves a Loan Party, a Loan Party Controlled Foreign Subsidiary or FSHCO shall be the continuing or surviving Person except and (y) when any Guarantor is merging with another Restricted Subsidiary that is not a Loan Party either (A) the Guarantor shall be the continuing or surviving Person or (B) such merger, amalgamation or consolidation shall be deemed to the extent otherwise constituting constitute either an Investment or disposition, as elected by the Borrower, and such Investment must be a Permitted Investment or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Section 7.01, respectively or such disposition must be a disposition permitted by Section 7.02hereunder;
(i) i. any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Restricted Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby and subject to compliance with Sections 6.12, 6.14 and 6.15, as applicable) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower Holdings and the Restricted its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Restricted Subsidiary that is a Guarantor, such Guarantor Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Loan Party, Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder and, in each case, will comply with Section 6.12, 6.14 and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents6.15, as applicable);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another any Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent and (ii) to the extent constituting an InvestmentInvestment or disposition, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03Section 7.01, respectively;
(d) so long as no Event of Default exists , or would result therefromsuch disposition must be a disposition permitted hereunder; provided, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Loan Party;
(d) any Restricted Subsidiary may merge, amalgamate or consolidate with, or dissolve into, any other Person, or consummate a Divisions as the Dividing Person, in order to effect a Permitted Investment; provided that (i) the continuing or surviving Person shall, to the extent that subject to the terms hereof, have complied with the requirements of Section 6.12 and (ii) to the extent constituting an Investment, such Investment must be a Permitted Investment and (iii) to the extent constituting a Disposition, such Disposition must be permitted hereunder;
(e) any Restricted Subsidiary that is an LLC may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or series more Restricted Subsidiaries at such time, or, with respect to assets not so held by one or more Restricted Subsidiaries, such Division, in the aggregate, would otherwise result in an Asset Sale permitted by Section 7.04; provided that if the Dividing Person is a Guarantor, then any Division Successor other than the Dividing Person shall become a Guarantor to the extent required by and in accordance with Section 6.12 and the Lien on and security interest in such property granted or to be granted in favor of related Dispositionsthe Collateral Agent under the Collateral Documents shall be maintained or created to the extent required by and in accordance with the provisions of Section 6.12, 6.14 and 6.15, as applicable;
(f) is not prohibited under any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person or consummate a Division as the Dividing Person in order to effect a Disposition permitted pursuant to Section 7.057.04 (other than Dispositions permitted by Section 7.03); and
(g) any Permitted Investment may be structured as a merger, consolidation or amalgamation or Division.
Appears in 2 contracts
Sources: Credit Agreement (Allison Transmission Holdings Inc), Credit Agreement (Allison Transmission Holdings Inc)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate merge or consolidate with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Person or (ii) any one or more other Restricted Subsidiaries; , provided, in the case of this clause (ii), that when such transaction involves a Loan Partyany Grantor or Subsidiary Guarantor is merging with another Subsidiary, a Loan Party Grantor or Subsidiary Guarantor, as applicable, shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(ib) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that (i) if the transferor in such a transaction is a Grantor or Subsidiary Guarantor, then (i) the transferee must be a Guarantor Grantor or the Borrower or a Subsidiary Guarantor, as applicable, (ii) if the property subject to the extent constituting an Investmentsuch Disposition includes any Borrowing Base Asset, then, upon consummation of such Investment must be Disposition such property shall either continue to qualify as a permitted Investment in Borrowing Base Asset or Indebtedness of shall have been removed as a Restricted Subsidiary which is not Borrowing Base Asset pursuant to a Loan Party Release Transaction in accordance with Sections 7.02 the provisions of Section 2.18(c), and 7.03(iii) if the property subject to such Disposition includes any Collateral, respectivelythen, upon consummation of such Disposition such property shall either continue to constitute Collateral or the Borrowing Base Asset constituting or related to such Collateral shall have been removed as a Borrowing Base Asset pursuant to a Release Transaction in accordance with the provisions of Section 2.18(c);
(c) Dispositions that are permitted under Section 7.05, and Investments that are permitted under Section 7.02, shall be permitted under this Section 7.04; provided, that in the case of any Disposition made in connection with a merger or consolidation, such transaction must also be permitted pursuant to Section 7.04(a) or 7.04(d), as applicable; and
(d) so long as no Event of Default exists or would result therefrom, the Borrower Any Subsidiary may merge or consolidate with any other PersonPerson that is not a Subsidiary in connection with an Investment permitted under Section 7.02 or a Disposition permitted under Section 7.05; provided that (i) in the case of a merger or consolidation involving the Borrower, the Borrower shall be the continuing or surviving corporation or Person and (ii) if in the Person formed by or surviving case of any such merger or consolidation is involving a Grantor or a Subsidiary Guarantor and not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and involving the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall cease to be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement Subsidiary or (y) the transaction shall otherwise constitute continuing or surviving Person must be a permitted Investment;
(f) any Restricted Grantor or a Subsidiary may effect a mergerGuarantor, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition as applicable (or series of related Dispositions) is not prohibited under Section 7.05.become a Grantor or a Subsidiary Guarantor, as applicable, upon the consummation thereof)
Appears in 2 contracts
Sources: Credit Agreement (Safety, Income & Growth, Inc.), Credit Agreement (Safety, Income & Growth, Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, 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 PersonDivision, except that:
(a) Holdings or any Restricted Subsidiary may merge, amalgamate merge or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;that:
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or Person;
(ii) if the Person formed by or surviving any such merger or consolidation is does not result in the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall ceasing to be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia 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 transaction shall not have an adverse time or after giving effect in any material respect on the perfection to such merger or priority of the Liens granted under the Collateral Documentsconsolidation, (B) Holdings shall not be an Obligor in respect of any Qualified Holding Company Debt or any other Indebtedness that is not permitted to be Indebtedness of the Successor Borrower under this Agreement at such time, (C) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower, (D) after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of the Borrower Holdings under this Agreement and the other Loan Documents to which the Borrower Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement direct parent of the applicable Mortgage (or other instrument 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 Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 2 contracts
Sources: First Lien Credit Agreement (WCG Clinical, Inc.), First Lien Credit Agreement (WCG Clinical, Inc.)
Fundamental Changes. The Borrower shall notNo Obligor will consolidate, nor shall it permit any Restricted Subsidiary to, directly amalgamate or indirectly, merge, dissolve, liquidate, consolidate merge with or into another Personany other Person or sell, lease or Dispose of (whether in one transaction or in a series of related transactions) otherwise transfer all or substantially all of its the Consolidated assets (whether now owned or hereafter acquired) to or in favor of any other Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;unless
(i) any Restricted Subsidiary that such Obligor is not a Loan Party may mergethe surviving corporation, amalgamate or consolidate with the Person (if other than such Obligor) formed by such consolidation or amalgamation or into any which such Obligor is merged or amalgamated, or the Person which acquires by sale or other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate transfer, or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantorwhich leases, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its the assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in of such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower Obligor (any such Person, the “Successor BorrowerSuccessor”), (A) the Successor Borrower shall be an entity organized or and existing under the Laws laws of any Permitted Jurisdiction, any state of the United States, any state thereof States or the District of Columbia and such transaction shall not have an adverse effect expressly assume, in any material respect a writing executed and delivered to the Administrative Agent for delivery to each of the Lenders, in form reasonably satisfactory to the Administrative Agent, the due and punctual payment of the principal of and interest on the perfection or priority Loans and the performance of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the other obligations of the Borrower under this Agreement and the other Loan Documents on the part of such Obligor to which the Borrower is a party pursuant to a supplement hereto be performed or thereto observed, as fully as if such Successor were originally named as such Obligor in form reasonably satisfactory to the Administrative Agent and the Borrower, this Agreement or such other Loan Document; and
(Cii) each Guarantor, unless it is the other party immediately after giving effect to such merger transaction, no Default or consolidation, Event of Default shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, occurred and be continuing; and
(Diii) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have Obligor has delivered to the Administrative Agent an officer’s a certificate on behalf of such Obligor signed by a Responsible Officer and an opinionopinion of counsel, each stating that all conditions provided in this Section 5.08 relating to such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if transaction have been satisfied. Upon the foregoing are satisfied satisfaction (or waived)waiver) of the conditions set forth in this Section 5.08, a Successor to the Successor Borrower will succeed toor the Guarantor shall succeed, and be substituted formay exercise every right and power of, the Borrower or the Guarantor under this Agreement; provided further that Agreement and the other Loan Documents with the same effect as if such Successor had been originally named as the Borrower agrees to provide any documentation or the Guarantor herein, and other information about the Successor Borrower or the Guarantor, as shall have been reasonably requested in writing by the Administrative Agentcase may be, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each relieved of and released from its Restricted Subsidiaries, shall have complied with obligations under this Agreement and the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05other Loan Documents.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (TE Connectivity Ltd.), Five Year Senior Credit Agreement (TE Connectivity Ltd.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (iA) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdictionjurisdiction in the United States); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Person or (iiB) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) any Restricted Subsidiary may liquidate or dissolve or and (iii) any Restricted Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interest of the Borrower and the its Restricted Subsidiaries and is not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor (other than Holdings) or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in in, or Indebtedness of of, a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than 7.02(e) or 7.02(m)) and 7.03, respectively;
(d) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral DocumentsColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerLender Representative, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to confirmed that its obligations under the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral AgentLender Representative, 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 AgentLender Representative) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinioncertificate, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement; provided further provided, further, that the Borrower agrees to provide any documentation and other information about the Successor Borrower Company as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through or the Administrative Agent that such Lender or the Administrative Agent shall have reasonably determined is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation Title III of the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary of the Borrower, which together with each of its their Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 and Section 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement Requirement; provided, further, that, in the case of any such merger or (y) the transaction shall otherwise constitute consolidation involving a permitted InvestmentLoan Party, no Event of Default has occurred and is continuing or would immediately result therefrom;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 (it being understood that this clause (f) shall not permit any merger, dissolution, liquidation, consolidation or Disposition of the Borrower to the extent not otherwise permitted by this Section 7.04) or a Restricted Payment permitted pursuant to Section 7.06;
(g) Holdings, the Borrower and its Restricted Subsidiaries may consummate the Transactions;
(h) Holdings, the Borrower and its Restricted Subsidiaries may consummate the Closing Date Assignment; and
(gi) any Holdings, the Borrower and its Restricted Subsidiary may Dispose of all consummate any Permitted Reorganization or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05a Permitted IPO Reorganization.
Appears in 2 contracts
Sources: Credit Agreement (ContextLogic Holdings Inc.), Credit Agreement (ContextLogic Holdings Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Person or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) any Restricted Subsidiary may liquidate or dissolve or and (iii) any Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted its Subsidiaries and is not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor (other than Holdings) or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively;; and
(d) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral DocumentsColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement joinder hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security this Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents[Reserved], and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement joinder to this Agreement or any Collateral Document comply with this Agreement; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default has occurred and is continuing or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary of the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted InvestmentRequirement;
(f) any Holdings, the Borrower and the Restricted Subsidiary Subsidiaries may effect consummate the Acquisition, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(g) so long as no Default has occurred and is continuing or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 2 contracts
Sources: Credit Agreement (Prestige Brands Holdings, Inc.), Form 8 K
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly may not (1) consolidate or indirectly, merge, dissolve, liquidate, consolidate merge with or into another Person, or Dispose of Person (whether in one transaction or in a series not the Borrower is the surviving Person); or (2) sell, assign, transfer, convey or otherwise dispose of related transactions) all or substantially all of the properties or assets 1003651351v23 of the Borrower and its assets (whether now owned Subsidiaries taken as a whole, in one or hereafter acquired) more related transactions to or in favor of any another Person, except that; unless:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with either: (i) the Borrower is the surviving Person; or (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (xii) the Borrower shall be the continuing Person formed by or surviving Personany such consolidation or merger (if other than the Borrower) or to which such sale, (y) such transaction does not result in the Borrower ceasing to be assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any State thereof or state of the United States, the District of Columbia and or any territory thereof (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, as the case may be, being herein called, the “Successor Borrower”), ;
(Ab) the Successor Borrower shall be an entity organized or existing under (if other than the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (BBorrower) the Successor Borrower shall expressly assume assumes all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower it is a party pursuant to by executing a supplement hereto joinder or thereto one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent Agent;
(c) immediately after such transaction no Default or Event of Default exists;
(d) immediately after giving pro forma effect to such transaction and any related financing transactions, as if the Borrowersame had occurred at the beginning of the applicable four-quarter period, either:
(Ci) the Successor Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 7.01(a); or
(ii) the Fixed Charge Coverage Ratio for the Successor Borrower and its Restricted Subsidiaries would be equal to or greater than such ratio for the Borrower and its Restricted Subsidiaries immediately prior to such transaction;
(e) each Guarantor, unless it is the Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to any such consolidation or merger that does not survive or consolidation, shall have confirmed that its Guarantee shall apply to become the Successor Borrower’s obligations ) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guarantee; and
(f) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Loan Documents, Security Agreement in connection with such transaction and (Dy) each Guarantor, unless it is the other any party to any such consolidation or merger that does not survive or consolidation, become the Successor Borrower) shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed or another document or instrument in form reasonably satisfactory to the Administrative Agent affirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party Guaranty as confirmed pursuant to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
clause (e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02above; provided that either (x) that, for the continuing or surviving Person shall purposes of this Section 7.06 only, neither a Music Publishing Sale nor a Recorded Music Sale will be deemed to be a Restricted Subsidiarysale, which together with each of its Restricted Subsidiariesassignment, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement transfer, conveyance or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose other disposition of all or substantially all of the properties or assets of the Borrower and its assets Subsidiaries taken as a whole. For the avoidance of doubt, (upon voluntary liquidation or otherwise1) the Borrower may therefore consummate a Music Publishing Sale in accordance with Section 7.03 without complying with this Section 7.06 notwithstanding anything to the extent that contrary in this Section 7.06, (2) the Borrower may therefore consummate a Recorded Music Sale in 1003651351v23 accordance with Section 7.03 without complying with this Section 7.06 notwithstanding anything to the contrary in this Section 7.06 and (3) the determination in the preceding proviso shall not affect the determination of what constitutes all or substantially all the assets of the Borrower under any other contract to which the Borrower is a party. For the purpose of this Section 7.06, with respect to any sale, lease, transfer, conveyance or other disposition of properties or assets in connection with any acquisition (including any acquisition by means of a merger or consolidation with or into the Borrower or any Restricted Subsidiary), the determination of whether such Disposition sale, lease, transfer, conveyance or disposition constitutes a sale of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole shall be made on a pro forma basis giving effect to such acquisition. This Section 7.06 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Borrower and its Restricted Subsidiaries. Notwithstanding the foregoing clauses (c) and (d), (x) any Restricted Subsidiary may consolidate with, merge into or series transfer all or part of related Dispositionsits properties and assets to the Borrower or to another Restricted Subsidiary and (y) the Borrower may merge with an Affiliate incorporated solely for the purpose of reincorporating the Borrower in another state of the United States so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not prohibited under Section 7.05increased thereby.
Appears in 2 contracts
Sources: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(ai) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the a Borrower (including a merger, the purpose of which is to reorganize the a Borrower into a new jurisdictionjurisdiction in the United States); provided that such Borrower (was a newly recognized entity) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia Person and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form if the Lead Borrower determines in good faith that such action is in the best interest of the Borrower Albertson’s Group and the Restricted Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, (x) any Borrower shall remain a Restricted Borrower and (y) a Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Lead Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must be a Guarantor or the Borrower Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections Section 7.02 (other than clause (e) of the definition of “Permitted Investments”) and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the a Borrower may merge with any other Person; provided that (i) the such Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the a Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor Company’s obligations under the Loan Agreements, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Security Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (FE) the such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Security Document comply with this Agreement; provided further, further that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate merge with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or a Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted InvestmentSection 6.16;
(f) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all merger, dissolution, liquidation, consolidation or substantially all of its assets (upon voluntary liquidation or otherwise) to Disposition in connection with the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05Restatement Effective Date Transactions shall be permitted.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Safeway Stores 42, Inc.), Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists prior to and/or after giving effect thereto:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower, provided that the Borrower shall be the continuing or surviving Person, or (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves a Loan Partyany Guarantor is merging with another Subsidiary, a Loan Party the Guarantor shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may mergePerson, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) provided, further that, in the case of both clause (x) and (y), any liquidation or dissolution Subsidiary which is an Unrestricted Subsidiary at the time of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and the applicable merger (1) must meet the criteria set forth in the case definition of any change in legal form, “Restricted Subsidiary” for conversion to a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on immediately prior to the perfection or priority occurrence of the Liens granted under the Collateral Documents)applicable merger and (2) shall be treated in all respects as a Restricted Subsidiary during all periods of determination for purposes of calculating Consolidated EBITDA;
(cb) the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or dissolution or otherwise) to the Borrower or to another Restricted Subsidiary; provided that (i) if the transferor in such a transaction is the Borrower, then the transferee must be a Guarantor and (ii) if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor;
(iic) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party Dispositions in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event the terms of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(gd) any Restricted Subsidiary Permitted Acquisition permitted by Section 7.07 may Dispose of all be structured as a merger, consolidation or substantially all of its assets (upon voluntary liquidation amalgamation, so long as the Borrower or otherwise) to a Loan Party is the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05surviving Person.
Appears in 2 contracts
Sources: Credit Agreement (Entravision Communications Corp), Credit Agreement (Entravision Communications Corp)
Fundamental Changes. The Borrower Neither Holdings nor any of the Restricted Subsidiaries shall notmerge, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeamalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transaction), except that:
(a) any Restricted Subsidiary of the Borrower may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Person or (ii) one or more other Restricted SubsidiariesSubsidiaries of the Borrower; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower Holdings determines in good faith that such action is in the best interest of the Borrower Holdings and the Restricted its Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom (in the case of a merger or amalgamation involving a Loan Party), any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that the continuing or surviving Person shall be a Restricted Subsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement;
(e) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (CB) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under the Loan Documents, (DC) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other each applicable Collateral Documents Document confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, (ED) if reasonably requested by the Collateral 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 Collateral Administrative Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (FE) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this AgreementAgreement and an opinion of counsel in form and substance reasonably satisfactory to the Administrative Agent and (F) the Administrative Agent shall have determined that such merger is not adverse to the interests of the Lenders in any respect; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) so long as no Default exists or would result therefrom, Holdings may merge with any Person that is a holding company; provided that (i) Holdings shall be the continuing or surviving company or (ii) if the Person formed by or surviving such merger or consolidation is not Holdings, (A) such Person shall expressly assume all obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto reasonably satisfactory to the Administrative Agent, (B) Holdings shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to this Agreement or any such Collateral Document comply with this Agreement and an opinion of counsel in form and substance reasonably satisfactory to the Administrative Agent and (C) the Administrative Agent shall have determined that such merger is not adverse to the interests of the Lenders in any respect; provided, further, that if the foregoing are satisfied, the successor of such merger, will succeed to, and be substituted for, Holdings under this Agreement;
(g) Holdings and the Restricted Subsidiary Subsidiaries may effect consummate the Acquisition, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(h) so long as no Event of Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 2 contracts
Sources: Credit Agreement (Styron Canada ULC), Credit Agreement (Trinseo S.A.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary of the Borrower may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Person or (ii) one or more other Restricted SubsidiariesSubsidiaries of the Borrower; provided, in the case of this clause (ii), provided that when such transaction involves any Subsidiary Guarantor is merging with a Non-Loan Party, a Loan Party Subsidiary Guarantor shall be the continuing or surviving Person except to unless the extent resulting Investment made in connection with Subsidiary Guarantor merging with a Non-Loan Party shall otherwise constituting an be a Restricted Investment permitted by Section 7.027.06 or a Permitted Investment;
(i) any Restricted Subsidiary that is not a Non-Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Non-Loan Party and Party, (ii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve and (iii) the Borrower or any Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted its Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, the Borrower will remain the Borrower and a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary of the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted SubsidiarySubsidiary of the Borrower; provided that if the transferor in such a transaction is the Borrower or a Subsidiary Guarantor, then (i) the transferee must be a Guarantor or the Borrower or a Subsidiary Guarantor or (ii) to the extent constituting an Investment, such Investment must be a Restricted Investment permitted Investment in by Section 7.06 or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyPermitted Investment;
(d) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof thereof, or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral DocumentsColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, Documents and (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent (1) an officer’s certificate and an opinionopinion 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 Agreement and (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any 2) all documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot PATRIOT Act; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving the Borrower or a Subsidiary), any Restricted Subsidiary of the Borrower may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.027.06 or a Permitted Investment; provided that either (x) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary of the Borrower, which together with each of its Restricted the Borrower’s Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted InvestmentRequirement;
(f) any Restricted Subsidiary may effect [reserved];
(g) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 2 contracts
Sources: First Amendment to Credit Agreement (Portillo's Inc.), First Amendment to Credit Agreement (Portillo's Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the such Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when any such transaction involves merger involving a Loan Party, Person that is not a Loan Party wholly owned Subsidiary immediately prior to such merger shall not be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted unless also permitted by Section 7.02;
(ib) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the a Borrower or to another Restricted Subsidiary; provided that ;
(c) any Subsidiary may liquidate or dissolve if the transferor Borrower which is the parent of such Subsidiary determines in good faith that such a transaction liquidation or dissolution is a Guarantor, then (i) in the transferee must be a Guarantor or the best interests of such Borrower or (ii) and is not materially disadvantageous to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;Lenders; and
(d) so long as no Event any Financing SPE may sell, transfer, lease or otherwise dispose of Default exists (in one transaction or would result therefrom, the Borrower may merge with any other Person; provided that (iin a series of related transactions) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation in connection with a Securitization, provided that the proceeds of such Securitization in excess of the amount such Financing SPE is required to pay to any holder of any debt obligation or otherwise) equity interests issued by such Financing SPE pursuant to the terms of such Securitization are paid to a Borrower promptly thereafter. Notwithstanding the foregoing, none of the Borrowers will, nor will permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by such Borrower and its Subsidiaries on the date of execution of this Agreement, businesses reasonably related thereto or that is a reasonable extension, development or expansion thereof. It is understood that a Trust Preferred Securities Transaction consummated for purposes of financing the type of business of such Disposition (Borrower or series Subsidiary as of related Dispositions) is the date of execution of this Agreement shall not prohibited be deemed to violate the foregoing restriction. For the avoidance of doubt, the transfer of legal ownership of any Trust Preferred Indebtedness permitted under Section 7.05this Agreement to a trustee pursuant to a Trust Preferred Securities Transaction shall not be deemed to be a sale, transfer, lease or other disposition of any assets to such trustee.
Appears in 2 contracts
Sources: Credit Agreement (KKR Financial Corp), Credit Agreement (KKR Financial Corp)
Fundamental Changes. The (a) Neither STX nor the Borrower shall notwill, nor shall it and will not permit any Restricted Subsidiary of their respective Subsidiaries to, directly merge into or indirectly, merge, dissolve, liquidate, consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with STX or the Borrower or any of their respective Subsidiaries, or liquidate or dissolve, nor will STX or the Borrower sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all the assets of its assets the Borrower and the Subsidiaries, taken as a whole (whether now owned directly or hereafter acquired) to through the sale, transfer, lease or in favor other disposition of any Personthe assets of one or more Subsidiaries), except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Person may merge with STX or the Borrower (including in a merger, transaction in which the purpose of which surviving entity is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists Person organized or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized existing under the laws of the United StatesStates of America, any State thereof or thereof, the District of Columbia and (z) or Ireland or the Cayman Islands and, if such transaction does surviving entity is not have an adverse effect STX or the Borrower, as the case may be, such Person expressly assumes, in any material respect on writing, all the perfection obligations of STX or priority of the Liens granted Borrower, as the case may be, under the Collateral Loan Documents or (ii) one or more other Restricted Subsidiaries; providedand provides the Lenders with requisite “know-your-customer” information as reasonably requested by a Lender, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Person may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary and (if any party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party and any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a GuarantorLenders, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in any such merger involving a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which Person that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations wholly-owned Subsidiary of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party immediately prior to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, not be permitted unless it is the other party to such merger or consolidation, shall have also permitted by a supplement to the Security Agreement Sections 6.04 and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.056.
Appears in 1 contract
Fundamental Changes. The Borrower Loan Parties shall not, nor and shall it not permit any Restricted Subsidiary of their respective Subsidiaries to, directly : (i) enter into any transaction of merger or indirectly, merge, dissolve, consolidation; (ii) liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation or dissolution); or (iii) convey, sell, lease, sublease, transfer or Dispose of (whether otherwise dispose of, in one transaction or in a series of related transactions) , all or substantially all of its assets (business or assets, whether now owned or hereafter acquired) to or in favor of any Person; provided, except however, that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with of the actions described in the immediately preceding clauses (i) the Borrower through (including a merger, the purpose iii) may be taken with respect to any Subsidiary of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person NSA REIT (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 so long as immediately prior to the extent required pursuant to the Collateral taking of such action, and Guarantee Requirement immediately thereafter and after giving effect thereto, no Default or (y) the transaction shall otherwise constitute a permitted InvestmentEvent of Default is or would be in existence;
(fb) a Person (other than a Loan Party) may merge with and into, and may dispose of its assets to, any Restricted Subsidiary may effect a Loan Party so long as (i) such Loan Party is the survivor of such merger, dissolution(ii) immediately prior to such merger, liquidation and immediately thereafter and after giving effect thereto, no Default or consolidationEvent of Default is or would be in existence and (iii) the Borrower shall have given the Administrative Agent at least 10 Business Days’ prior written notice of such merger, such notice to include a certification as to the purpose of which is to effect a Disposition permitted pursuant to Section 7.05matters described in the immediately preceding clause (ii); and
(gc) the Loan Parties may convey, sell, lease, sublease, transfer or otherwise dispose of assets among themselves, and any Restricted Subsidiary of NSA REIT (other than the Borrower) may Dispose convey, sell, lease, sublease, transfer or otherwise dispose of all assets to NSA REIT or substantially all any other Wholly-Owned Subsidiary of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05NSA REIT.
Appears in 1 contract
Sources: Credit Agreement (National Storage Affiliates Trust)
Fundamental Changes. The Borrower shall notExcept as expressly permitted by Section 9.10 or 9.12, nor shall it permit enter into any Restricted Subsidiary tomerger, directly consolidation or indirectlyamalgamation, merge, dissolve, or liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation or dissolution), or reorganize itself in any non-U.S. jurisdiction, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned the property or hereafter acquired) to or in favor business of any Personthe Group Members, except that:
(a) any Restricted Subsidiary may merge, amalgamate if at the time thereof and immediately after giving effect thereto no Default or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall have occurred and be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that Person other than a Qualified Asset Guarantor may merge into the Borrower in a transaction in which the Borrower is not a Loan Party may mergethe surviving corporation, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Person other than the Borrower may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary; provided that if one of the parties to such merger is (x) an Other Guarantor, the Other Guarantor shall be the surviving entity and (y) a Qualified Asset Guarantor, the Qualified Asset Guarantor shall be the surviving entity, (iii) any Non-Qualified Asset Subsidiary may Dispose of its assets (A) to the Borrower or to another Subsidiary; provided that if one of the parties to such transaction is a Guarantor, either (1) the Guarantor shall be the transferee or (2) the transaction is permitted by Section 9.12 or (B) in a transaction permitted by Section 9.12, (iv) the Borrower may sell the Capital Stock in a Subsidiary other than a Qualified Asset Guarantor in a transaction permitted by Section 9.12, (v) any Subsidiary which is not a Guarantor may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interest interests of the Borrower Borrower, and the Restricted Subsidiaries and is not disadvantageous to the Lenders in (vi) any material respect (it being understood that (Subsidiary other than a transaction constituting a permitted Investment under Section 7.02 Qualified Asset Guarantor may liquidate or involving dissolve; provided that (A) if such Subsidiary is an Excluded Subsidiary) in the case of any liquidation or dissolution of a Other Guarantor, all of the assets of such Guarantor shall transfer its assets Subsidiary are transferred to a Loan PartyParty and (B) otherwise, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority all of the Liens granted under the Collateral Documents);
(c) any Restricted assets of such Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) are transferred to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each one of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Fundamental Changes. The With respect to the Borrower shall notor any Significant Subsidiary, nor shall it permit without the consent of the Administrative Agent and the Required Lenders enter into any Restricted Subsidiary totransaction of merger or consolidation or amalgamation, directly or indirectly, merge, dissolve, liquidate, consolidate with wind up or into another Persondissolve (or suffer any liquidation or dissolution), convey, sell, lease, transfer or Dispose of (whether otherwise dispose of, in one transaction or in a series of related transactions) , all or substantially all of the consolidated assets of the Borrower and its assets (whether now owned or hereafter acquired) to or in favor of any PersonSubsidiaries, taken as a whole, except that:
(a) for sales, leases or rentals of property or assets in the ordinary course of business, (b) that any Restricted consolidated Subsidiary of the Borrower may merge, amalgamate be merged or consolidate consolidated with (i) or into the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (ycorporation) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, or with any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in Subsidiaries of the case of this clause Borrower (ii), provided that when if any such transaction involves shall be between a Loan PartySubsidiary and a wholly-owned Subsidiary, a Loan Party the wholly-owned Subsidiary shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may mergecorporation), amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose sell, lease, transfer or otherwise dispose of all any or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or wholly-owned Subsidiary of the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge be merged with any other Person; provided that Person if (i) the Borrower shall be is the continuing or surviving corporation or corporation, (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse immediately after giving effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger merger, there shall exist no condition or consolidationevent which constitutes an Event of Default or which, shall have confirmed that its Guarantee shall apply to with the Successor Borrower’s obligations under the Loan Documentsgiving of notice or lapse of time or both, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor would constitute an Event of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan DocumentsDefault, and (Fiii) all representations and warranties contained in Article III hereof are true and correct in all material respects (except for any such representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which representation shall be true and correct in all respects) on and as of the Borrower shall have delivered to date of the Administrative Agent an officer’s certificate and an opinion, each stating that consummation of such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed tomerger, and be substituted forafter giving effect thereto, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.though restated on
Appears in 1 contract
Sources: Uncommitted Letter of Credit and Reimbursement Agreement (Northwest Natural Gas Co)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, 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, Person except that:
(ai) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the a Borrower (including a merger, the purpose of which is to reorganize the a Borrower into a new jurisdictionjurisdiction in the United States); provided that such Borrower (was a newly recognized entity) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia Person and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form if the Lead Borrower determines in good faith that such action is in the best interest of the Borrower Albertson’s Group and the Restricted Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, (x) any Borrower shall remain a Restricted Borrower and (y) a Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Lead Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must be a Guarantor or the Borrower Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections Section 7.02 (other than clause (e) of the definition of “Permitted Investments”) and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the a Borrower may merge with any other Person; provided that (i) the such Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the a Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor Company’s obligations under the Loan Agreements, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Security Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (FE) the such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Security Document comply with this Agreement; provided further, further that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate merge with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or a Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;Section 6.16; and
(f) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Fundamental Changes. The (a) Neither the US Borrower shall not, nor shall it permit any Restricted the Subsidiary to, directly Borrower may consolidate or indirectly, merge, dissolve, liquidate, consolidate merge with or into another Person, or Dispose of wind up into (whether in one transaction or in a series not the US Borrower is the surviving corporation), and may not sell, assign, transfer, lease, convey or otherwise dispose of related transactions) all or substantially all of the properties or assets of the US Borrower and its assets (whether now owned Restricted Subsidiaries, taken as a whole, in one or hereafter acquired) more related transactions, to or in favor of any Person, except thatPerson unless:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the US Borrower (including a mergeror the Subsidiary Borrower, as the purpose of which case may be, is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists surviving corporation or would result therefrom, (x) the Borrower shall be the continuing Person formed by or surviving Personany such consolidation or merger (if other than the US Borrower or the Subsidiary Borrower) or the Person to whom such sale, (y) such transaction does not result in the Borrower ceasing to be assignment, transfer, lease, conveyance or other disposition will have been made is organized or existing under the laws of the United States, any State thereof or state thereof, the District of Columbia and Columbia, or any territory thereof (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”);
(ii) the Successor Company, if other than the US Borrower or the Subsidiary Borrower, expressly assumes all the Obligations of the US Borrower or the Subsidiary Borrower, as the case may be, pursuant to documentation reasonably satisfactory to the Administrative Agent;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Borrower shall Company would be an entity organized or existing under the Laws permitted to incur at least $1.00 of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, additional Indebtedness pursuant to Section 6.01(a); or
(B) the Successor Borrower shall expressly assume all the obligations each of the Borrower under this Agreement Consolidated Leverage Ratio and the other Loan Documents Consolidated Secured Debt Ratio for the US Borrower and its Restricted Subsidiaries would be equal to which or less than the Borrower is a party pursuant each ratio immediately prior to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, such transaction; and
(Cv) each Guarantor, unless it is the other party to such merger or consolidationthe transactions described above, in which case clause (1)(B) of Section 6.04(c) shall apply, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations Obligations under the Loan Documents, (D) each Guarantor, unless Documents to which it is the other a party pursuant to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument documentation reasonably satisfactory to the Collateral Administrative Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and ;
(Fvi) the Borrower Borrowers shall have delivered to the Administrative Agent an officerOfficer’s certificate Certificate and an opinionOpinion of Counsel, each stating that such consolidation, merger or consolidation transfer and such supplement documentation relating to this Agreement or any Collateral Document the Loan Documents, if any, comply with this Agreement; provided furtherprovided, that if the foregoing are satisfied US Borrower shall promptly notify the Administrative Agent of any such transaction and shall take all required actions either prior to or upon the later to occur of 30 days following such transaction (or waived), the earlier of the date of the required delivery of the next Pricing Certificate and the date which is 45 days after the end of the most recently ended fiscal quarter (or such longer period as to which the Administrative Agent may consent) in order to preserve and protect the Liens on the Collateral securing the Secured Obligations. The Successor Borrower Company will succeed to, and be substituted for, for the US Borrower under this Agreement; provided further that the Borrower agrees Loan Documents. Notwithstanding the foregoing, clause (iv) shall not apply to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by Transactions (including the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;Merger).
(eb) any Notwithstanding the foregoing paragraphs (a)(iii) and (a)(iv),
(i) the US Borrower or a Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than or merge into or transfer all or part of its properties and assets to the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing US Borrower or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Guarantor; and
(gii) the US Borrower may merge with an Affiliate of the US Borrower solely for the purpose of reorganizing the US Borrower in a State of the United States so long as the amount of Indebtedness of the US Borrower and its Restricted Subsidiaries is not increased thereby.
(c) No Restricted Guarantor will, and the US Borrower will not permit any Restricted Subsidiary may Dispose Guarantor to, consolidate or merge with or into or wind up into (whether or not the US Borrower or Restricted Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its assets properties or assets, in one or more related transactions, to any Person unless:
(upon voluntary liquidation i) (A) such Restricted Guarantor is the surviving corporation or otherwisethe Person formed by or surviving any such consolidation or merger (if other than such Restricted Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is organized or existing under the extent that laws of the jurisdiction of organization of such Disposition Restricted Guarantor, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Restricted Guarantor or series of related Dispositions) is not prohibited under Section 7.05.Person, the “Successor Person”);
Appears in 1 contract
Fundamental Changes. The Borrower Borrowers shall not, nor shall it the Borrowers permit any Restricted Subsidiary to, directly consolidate, amalgamate or indirectly, merge, dissolve, liquidate, consolidate 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 PersonPerson (other than as part of the Transactions), except that:
(a1) Any Holding Entity or any Restricted Subsidiary may merge, amalgamate merge or consolidate with (i) the any Borrower (including a merger, the purpose of which is to reorganize the such Borrower into a new jurisdiction); provided that that
(wa) no Event of Default exists or would result therefrom, (x) the such Borrower shall be the continuing or surviving Person, ,
(yb) such transaction merger or consolidation does not result in the Borrower Borrowers ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and
(c) in the case of a merger or consolidation of any Holding Entity with and such transaction into a Borrower,
(i) Holding Entities shall not have an adverse effect be obligors in respect of any material respect on the perfection or priority Indebtedness that is not permitted to be Indebtedness of the Liens granted Borrowers under this Agreement,
(ii) Holding Entities shall have no direct Subsidiaries at the Collateral Documentstime of such merger or consolidation other than the Borrowers,
(iii) no Event of Default exists at such time or after giving effect to such transaction, and
(Biv) the Successor after giving effect to such transaction, a direct parent of such Borrower shall will (A) expressly assume all the obligations of the Borrower applicable Holding Entity under this Agreement and the other Loan Documents to which the Borrower Holding Entity is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, Borrowers and (CB) each Guarantor, unless it is pledge 100% of the other party to Equity Interests of such merger or consolidation, shall have confirmed that its Guarantee shall apply Borrower held by such direct parent to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Administrative Agent as Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument Obligations in form reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its Administrative Agent and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActBorrowers;
(e2) (a) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.a Loan Party,
Appears in 1 contract
Fundamental Changes. Section 7.03(a) of the Credit Agreement shall be and it hereby is amended and restated in its entirety to read as follows:
(a) The Borrower shall will not, nor shall will it permit any of its Restricted Subsidiary Subsidiaries to, directly merge into or indirectly, merge, dissolve, liquidate, 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 any substantial part of its assets assets, or any of its Borrowing Base Properties or any of the Equity Interests of any Restricted Subsidiary (in each case, whether now owned or hereafter acquired) to ), or in favor of any Personliquidate or dissolve, except that:
, the Borrower or any Restricted Subsidiary may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business and, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (ai) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Person (other than the Borrower) may merge into any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary, (iii) any Restricted Subsidiary may mergesell, amalgamate transfer, lease or consolidate with (i) otherwise dispose of its assets to the Borrower (including a merger, the purpose of which is or to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefromanother Restricted Subsidiary, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (iiiv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders in any material respect Lenders, (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 v) the Borrower or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose sell, transfer, lease or otherwise dispose of all equipment and related items in the ordinary course of business, that are obsolete or substantially all no longer necessary in the business of its assets (upon voluntary liquidation or otherwise) to the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility, (vi) subject to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorSection 2.10(b), then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may mergesell, amalgamate transfer, lease, exchange, abandon or consolidate otherwise dispose of Borrowing Base Properties with any other Person (other than the Borrower) a value not exceeding, in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.the
Appears in 1 contract
Sources: Credit Agreement (Gasco Energy Inc)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided , provided, that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in Person or the Borrower ceasing to surviving Person shall be a Person organized and existing under the laws of the United States, States or any State state thereof or and shall expressly assume the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority obligations of the Liens granted under Borrower pursuant to documents reasonably acceptable to the Collateral Documents Administrative Agent or (ii) any one or more other Restricted Subsidiaries; , provided, in the case of this clause (ii), that when such transaction involves a Loan Partyany Guarantor is merging with another Restricted Subsidiary, a Loan Party (A) the Guarantor shall be the continuing or surviving Person except or (B) to the extent otherwise constituting an Investment, such Investment must be a permitted by Section 7.02Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03;
(iA) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the First Lien Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Subsidiary that is a Guarantor, such Guarantor Subsidiary shall at or before the time of such dissolution transfer its assets to another Subsidiary that is a Loan Party, Guarantor; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower any Restricted Subsidiary may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided provided, that either (xi) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 6.12 or (ii) to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute constituting an Investment, such Investment must be a permitted Investment;Investment in accordance with Section 7.02; and
(fe) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
7.05 (g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under other than Section 7.057.05(f)(A)).
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves a Loan Partyany Subsidiary Guarantor is merging with another Subsidiary, a Loan Party the Subsidiary Guarantor shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(ib) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Subsidiary Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Subsidiary Guarantor;
(iic) any Subsidiary may dissolve, liquidate or wind up its affairs at any time provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect to the extent constituting an Investment, such Investment must be a any Disposition related thereto is otherwise permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelypursuant to Section 7.05;
(d) so long as no Event the Borrower and its Subsidiaries may consummate the Merger and the Reorganization; and
(e) in connection with any acquisition permitted under Section 7.03, any Subsidiary of Default exists or would result therefrom, the Borrower may merge into or consolidate with any other PersonPerson or permit any other Person to merge into or consolidate with it; provided that (i) the Person surviving such merger shall be a wholly owned Subsidiary of the Borrower; and provided further that to the extent any Subsidiary Guarantor merges into or consolidates with any other Person and is not the surviving entity, the surviving entity of such merger shall be either the Borrower shall be or another Subsidiary Guarantor; provided, however, that in each case, immediately after giving effect thereto, in the continuing or surviving corporation or (ii) if the Person formed by or surviving case of any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted forparty, the Borrower under this Agreement; provided further that is the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05corporation.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it the Borrower permit any Restricted Subsidiary to, directly consolidate, amalgamate or indirectly, merge, dissolve, liquidate, consolidate merge with or into or wind up into another Person, or Dispose liquidate or dissolve or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), including by an allocation of assets among newly divided limited liability companies pursuant to a “plan of division” under the Delaware Limited Liability Company Act, except that:
(a1) Subject to Section 3.03(a) of the Security Agreement, Holdings or any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, amalgamation or consolidation, the purpose of which is to reorganize or continue the Borrower into a new jurisdiction); provided that that:
(w) no Event of Default exists or would result therefrom, (xa) the Borrower shall be the continuing or surviving Person, ,
(yb) such transaction merger, amalgamation or consolidation does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or thereof, the District of Columbia or Canada or any province or territory thereof, and
(c) in the case of a merger, amalgamation or consolidation of Holdings with and such transaction into the Borrower,
(i) Holdings shall not have be an adverse effect obligor in respect of any material respect on the perfection or priority Indebtedness that is not permitted to be Indebtedness of the Liens granted Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the Collateral Documentstime of such merger, amalgamation or consolidation other than the Borrower,
(Biii) 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 Successor direct parent of the Borrower shall will (A) expressly assume all the obligations of the Borrower Holdings under this Agreement and the other Loan Documents to which the Borrower Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Collateral Agent and the Borrower, (CB) each Guarantor, unless it is pledge 100% of the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply Equity Interests of the Borrower to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it Agent as Collateral to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument Obligations in form reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its Agent and the Successor Borrower’s obligations under the Loan Documents, Borrower and (FC) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply be in compliance with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActSection 7.09;
(e2) (a) (i) any Restricted Subsidiary that is not a Loan Party may mergeamalgamate, amalgamate merge or consolidate with or into any other Person Subsidiary that is not a Loan Party and (other than the Borrowerii) in order to effect an Investment permitted pursuant to Section 7.02; provided any Subsidiary that either (x) the continuing is a Loan Party may merge or surviving Person shall be consolidate with a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the Subsidiary that is not a Loan Party so long as such transaction shall would otherwise constitute a permitted Permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, 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 PersonDivision, except that:
(a) Holdings or any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that that:
(w) no Event of Default exists or would result therefrom, (xi) the Borrower shall be the continuing or surviving Person, ;
(yii) such transaction merger, amalgamation or consolidation does not result in the Borrower ceasing to be organized under the laws Laws of the United States, any State state thereof or the District of Columbia and Columbia; and
(ziii) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of a merger, amalgamation or consolidation of Holdings with and into the Borrower, (A) no Event of Default shall exist at such time or after giving effect to such merger, amalgamation or consolidation, (B) Holdings shall have no direct Subsidiaries at the time of such merger, amalgamation or consolidation other than the Borrower, (C) after giving effect to such merger, amalgamation or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this clause (ii), that when such transaction involves Agreement and the other Loan Documents to which Holdings is a Loan Party, party pursuant to a Loan Party shall be the continuing supplement hereto or surviving Person except thereto in form reasonably satisfactory to the extent otherwise constituting an Investment permitted by Section 7.02Administrative Agent and (D) such direct parent of the Borrower shall concurrently become a Guarantor and pledge 100% of the Equity Interest of the Borrower to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent;
(ib) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary or liquidate or dissolve; provided, that if such Restricted Subsidiary is not a Loan Party, the surviving Person (or the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be a Loan Party unless the transfer of the assets and operations of such Loan Party to a Non-Loan Party would have been permitted as an Investment under Section 7.02 (it being understood that any such merger, consolidation, amalgamation, dissolution or liquidation shall be deemed to have used the capacity under the relevant clause of Section 7.02); provided, further, if any such Restricted Subsidiary is a Co-Borrower, (i) the Co-Borrower shall be the surviving Person or (ii) any Loans borrowed by such Co-Borrower shall be expressly assumed by the Borrower or another Co-Borrower;
(c) any merger or amalgamation the purpose of which is to reincorporate or reorganize a Restricted Subsidiary in another jurisdiction shall be permitted;
(d) any Restricted Subsidiary may liquidate or dissolve or change its legal form form; provided (i) no Event of Default shall result therefrom and (ii) the surviving Person (or the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be a Restricted Subsidiary; provided, further, if any such Restricted Subsidiary is a Co-Borrower, (x) the surviving Person (or the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be the Borrower determines in good faith that or another Co-Borrower or (y) any Loans borrowed by such action is in the best interest of Co-Borrower shall be expressly assumed by the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)another Co-Borrower;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(de) so long as no Event of Default exists or would result therefrom, the Borrower may merge merge, amalgamate or consolidate with any other Person; provided that that:
(i) the Borrower shall be the continuing or surviving corporation or corporation; or
(ii) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”), ;
(A) the Successor Borrower shall be an entity organized or existing under the Laws laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, Columbia;
(B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, Agent;
(C) each Guarantor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Borrower’s obligations under the Loan Documents, this Agreement;
(D) each GuarantorLoan Party, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents or the Canadian Security Agreement, as applicable, confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under this Agreement and the Loan Documents, direct parent of such Person shall pledge 100% of the Equity Interests of such Person to the Administrative Agent as Collateral to secure the Obligations; and
(E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion 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 (or waived)satisfied, the Successor Borrower ▇▇▇▇▇▇▇▇ will succeed to, and be substituted for, the Borrower under this Agreement;
(f) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment, Acquisition Transaction or other transaction not prohibited by the Loan Documents (other than any transaction pursuant to Section 7.02(o)); provided, if any such Restricted Subsidiary is a Co-Borrower, (i) the Co-Borrower shall be the surviving Person or (ii) any Loans borrowed by such Co-Borrower shall be expressly assumed by the Borrower or another Co-Borrower;
(g) any Loan Party or any Restricted Subsidiary may conduct a Division that produces two or more surviving or resulting Persons; provided that
(i) if a Division is conducted by the Borrower or a Co-Borrower, then each surviving or resulting Person shall constitute a “Borrower” or “Co-Borrower” for all purposes of the Loan Documents (unless the Administrative Agent otherwise consents in its reasonable discretion) and shall remain jointly and severally liable for all Obligations (other than Excluded Swap Obligations, where applicable) of the Borrower immediately prior to such Division and otherwise comply with Section 7.04(e);
(ii) if a Division is conducted by Holdings, then all of the Equity Interests of the Borrower must be owned by only one Person that survives or results from such Division, and such Person owning such Equity Interests in the Borrower shall otherwise comply with Section 7.10(b), become a Guarantor and pledge 100% of the Equity Interests of the Borrower to the Collateral Agent; and
(iii) if a Division is conducted by a Loan Party other than the Borrower or Holdings, then each surviving or resulting Person of such Division shall also be a Loan Party unless and to the extent any such surviving or resulting Loan Party is the subject of a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)) or otherwise would constitute an Excluded Subsidiary; provided further that such surviving or resulting Person not becoming a Loan Party and the assets and property of such surviving or resulting Person not becoming Collateral shall, in each case, be treated as an Investment and shall be permitted under this Section 7.04(g)(iii) solely to the extent permitted under Section 7.02;
(h) as long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 or a Permitted Reorganization (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, dissolution, liquidation, consolidation, amalgamation or Division of any Loan Party or a Restricted Subsidiary effected in accordance with this Section 7.04, the Borrower agrees shall or shall cause, with respect to provide any documentation and other information about each surviving or continuing Restricted Subsidiary (or new direct Parent Entity) (a) promptly deliver or cause to be delivered to the Successor Borrower as shall have been reasonably requested in writing Administrative Agent for further distribution by the Administrative Agent, Agent to each Lender (i) such information and documentation reasonably requested by the Collateral Administrative Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
PATRIOT Act and (eii) a Beneficial Ownership Certification and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any Restricted Subsidiary and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent or Collateral Agent may merge, amalgamate or consolidate with any other Person (other than the Borrower) reasonably request in order to effect an Investment permitted pursuant perfect or continue the perfection of the Liens granted or purported to Section 7.02; provided that either (x) be granted by the continuing or surviving Person shall be a Restricted Subsidiary, which together Collateral Documents in accordance with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05as promptly as practicable.
Appears in 1 contract
Fundamental Changes. The Neither the Borrower nor any of the Restricted Subsidiaries shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) Person and such transaction merger does not result in the Borrower ceasing to be a corporation, partnership or limited liability company organized under the laws Laws of the United States, any State state thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted its Subsidiaries and is if not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than 7.02(e)) or 7.05 or, in the case of any material respect such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;; and
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee Guaranty shall apply to the Successor BorrowerCompany’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral 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 Collateral Administrative Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion 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 provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;and
(e) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted InvestmentRequirement;
(f) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary the Borrower and its Subsidiaries may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to consummate Permitted Intercompany Activities and, the extent that such Spin-Off Transaction, the Timeshare Disposition (individually or series of related Dispositionsin the aggregate) is not prohibited under Section 7.05and the Corporate Realignmentrelated transactions.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate merge with or consolidate with liquidate into (i) the any Borrower (including a merger, the purpose of which is to reorganize the any Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, jurisdiction so long as (x) the US Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be remains organized under the laws of the United States, any State state thereof or the District of Columbia and (zy) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted other Borrower remains organized under the Collateral Laws of its current jurisdiction or the Laws of another jurisdiction that permits all payments required to be made by such Borrower hereunder and under the other Loan Documents to be made free and clear of and without deduction for any Taxes or such Borrower agrees to indemnify each Agent and each Lender for the full amount of such Taxes and any liability arising therefrom or with respect thereto in the manner provided in Article 3 (the requirements set forth in this clause (y) and the foregoing clause (x), collectively, the “Jurisdictional Requirements”)); provided that such Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Restricted Subsidiary that is a Loan PartyParty is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person except or (B) to the extent otherwise constituting an Investment, such Investment must be an Investment permitted by Section 7.027.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary (other than any Borrower) may liquidate or dissolve or change its legal form if the BR Borrower determines in good faith that such action is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)BR Borrower;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the BR Borrower or any Restricted Subsidiary may merge with any other Person; provided that Person in order to (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; 7.02 (provided that either (xA) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 6.12 and (B) to the extent required constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02) or (ii) to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 6.16; provided that if any Borrower is a party to any transaction effected pursuant to this Section 7.04(c), (1) such Borrower shall be the Collateral continuing and Guarantee Requirement surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent and (y2) the transaction Jurisdictional Requirements shall otherwise constitute a permitted Investmentbe satisfied;
(fd) any the BR Borrower and its Restricted Subsidiary Subsidiaries may effect consummate the Acquisition and the transactions contemplated thereby (including the corporate restructuring transactions previously disclosed to the Administrative Agent); and
(e) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected; and
provided that if any Borrower is a party to any transaction effected pursuant to this Section 7.04(e), (gi) any Restricted Subsidiary may Dispose such Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of all or substantially all of its assets (upon voluntary liquidation or otherwise) such Borrower in a manner reasonably acceptable to the extent that such Disposition Administrative Agent and (or series of related Dispositionsii) is not prohibited under Section 7.05the Jurisdictional Requirements shall be satisfied.
Appears in 1 contract
Fundamental Changes. The Neither the Borrower nor any of its Restricted Subsidiaries shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transaction or the 2015 Transactions), except that:
: (a) any Restricted Subsidiary may merge, amalgamate merge or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Person or (ii) one or more other Restricted Subsidiaries; provided, in the case of this provided that when any Person that is a Loan Party is merging with a Restricted Subsidiary under clause (iia), that when such transaction involves a Loan Party, (x) a Loan Party shall be the continuing or surviving Person except Person; or (y) to the extent otherwise constituting an Investment, such Investment must be a permitted by Section 7.02;
Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.05 or the definition of Permitted Investment (other than clause (d) thereof), respectively; (b) (i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted its Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
Lenders; (c) the Borrower or any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is the Borrower or a Guarantor, then (i) the transferee must be the Borrower or a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.037.05 or the definition of Permitted Investment (other than clause (d) thereof), respectively;
; and (d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall 156 1002217597 1001820109v3 be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Company”) is not the Borrower”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Propertyparcel of Real Property that is subject to a Mortgage, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan DocumentsDocuments[reserved], (E) [reserved], and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement; (e) so long as no Default exists or would result therefrom, a Guarantor may merge or consolidate with any other Person; provided further that (i) such Guarantor shall be the Borrower agrees to provide any documentation and other information about continuing or surviving corporation or (ii) if the Successor Borrower as Company is not such Guarantor, (A) the Successor Company shall have been be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of such Guarantor under this Agreement and the other Loan Documents to which such Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably requested in writing by satisfactory to the Administrative Agent, (C) each other Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, (D) each other Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Agent Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) each mortgagor of a parcel of Real Property that is subject to a Mortgage, unless it is the other party to such merger or any Lender through consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents[reserved], (E) [reserved], and (F) such Guarantor shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that is required by regulatory authorities such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this 157 1002217597 1001820109v3 Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Guarantor under applicable “know your customer” and anti-money laundering rules and regulationsthis Agreement; (f) so long as no Default exists or would result therefrom, including without limitation the USA Patriot Act;
(e) Borrower or any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.027.05; provided that either (x) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral 6.11; and Guarantee Requirement (g) so long as no Default exists or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.04; and
and (gh) any Restricted Subsidiary may Dispose dispose of the Equity Interests of the Target, to the extent constituting Margin Stock. Section 7.04Dispositions. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate any Disposition, except: (a) any disposition of Cash Equivalents or Investment Grade Securities or obsolete or worn out equipment or other assets in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale in the ordinary course of business; (b) the disposition of all or substantially all of its the assets of the Borrower in a manner permitted pursuant to Section 7.03 or any disposition that constitutes a Change of Control pursuant to this Agreement; (upon voluntary liquidation c) the making of any Restricted Payment or otherwisePermitted Investment that is permitted to be made, and is made, under Section 7.05 or any Permitted Investment; (d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of transactions with an aggregate fair market value (as determined in good faith by the Borrower) of less than $75,000,000;[reserved]; (e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary of the Borrower to the Borrower or by the Borrower or a Restricted Subsidiary of the Borrower to another Restricted Subsidiary of the Borrower; (f) to the extent allowable under Section 1031 of the Internal Revenue Code of 1986, or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business; 158 1002217597 1001820109v3
(g) the lease, assignment or sub-lease of any real or personal property in the ordinary course of business; (h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary; (i) foreclosures on assets; (j) sales of accounts receivable, or participations therein, in connection with any Receivables Facility; (k) any financing transaction with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date, including Sale and Lease-Back Transactions and asset securitizations permitted by this Agreement; (l) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business (other than exclusive, world-wide licenses that are longer than three years); (m) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements; (n) the lapse or abandonment of intellectual property rights in the ordinary course of business which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower and its Restricted Subsidiaries taken as a whole; (o) (1) Dispositionsany Permitted Asset Swap in which the Borrower or such Disposition Restricted Subsidiary, as the case may be, receives consideration at the time of such DispositionPermitted Asset Swap at least equal to the fair market value (as determined in good faith by the Borrower) of the assets sold or otherwise disposed of; and (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Borrower or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of: (i) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent consolidated balance sheet or in the footnotes thereto, or if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Borrower’s consolidated balance sheet or in the footnotes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Borrower) of the Borrower or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Obligations, that are assumed by the transferee of any such assets (or series of related Dispositionsare otherwise extinguished by the transferee in connection with the transactions relating to such Disposition) is not prohibited under Section 7.05.159 1002217597 1001820109v3
Appears in 1 contract
Fundamental Changes. The Borrower No Loan Party shall, and no Loan Party shall not, nor shall it cause or permit any Restricted Subsidiary of the Borrower to, directly merge into or indirectly, merge, dissolve, liquidate, 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 assets assets, or all or substantially all of the Equity Interests of any Subsidiary (in each case, whether now owned or hereafter acquired) to ), or in favor of any Personliquidate or dissolve, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) if at the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) time thereof and immediately after giving effect thereto no Event of Default exists or would result therefrom, (x) the Borrower shall have occurred and be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that Person may merge with and into the Borrower in a transaction in which the Borrower is not a Loan Party may mergethe surviving corporation, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Person (other than the Borrower, Globant IT, the Parent or Globant S.A. (Spain)) may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to a Wholly Owned Subsidiary, (iv) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders in (v) any material respect (it being understood that (other than a transaction constituting a merger or consolidation to effect an Investment permitted Investment under Section 7.02 6.6 or involving an Excluded Subsidiarya Disposition permitted under Section 6.5, and (vi) any Acquisition by a Loan Party or any Wholly Owned Subsidiary of a Loan Party where:
(A) immediately before and after giving effect to such Acquisition, no Default shall exist;
(B) immediately before and after giving effect to such Acquisition on a pro forma basis, as at the end of the most recent fiscal quarter for which financial statements are delivered, the Loan Parties shall be in compliance with the Maximum Net Leverage Ratio covenant set forth in Section 6.1(b);
(C) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case Acquisition of any change in legal formPerson, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and the board of directors or other applicable managing entity of such transaction Person shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)approved such Acquisition;
(cD) any Restricted Subsidiary if requested by the Administrative Agent, reasonably prior to such Acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may Dispose require to evidence the termination of all Liens on the assets or substantially all of its assets (upon voluntary liquidation or otherwise) business to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyacquired;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (iE) the Borrower provisions of Sections 5.9 and 5.12 shall be the continuing or surviving corporation or satisfied; and
(iiF) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party reasonably prior to such merger or consolidationAcquisition, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied Chief Financial Officer in the form of Exhibit H attached hereto certifying as to compliance with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or set forth in clauses (yA) the transaction shall otherwise constitute through (E) above; provided that, any such merger involving a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent Person that such Disposition (or series of related Dispositions) is not prohibited under a Wholly Owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 7.056.6.
Appears in 1 contract
Sources: Credit Agreement (Globant S.A.)
Fundamental Changes. (a) The Borrower shall Company will not, nor shall it and will not permit any Restricted Subsidiary to, directly merge or indirectly, merge, dissolve, liquidate, consolidate with or into another any other Person, or Dispose permit any other Person to merge or consolidate with it, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) any substantial portion of its assets, or acquire all or substantially all of its the equity interests or assets (whether now owned or hereafter acquired) to or in favor of any Personother Person or assets constituting a division or other business unit, or liquidate or dissolve, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge into the Company or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Subsidiary; (ii) any Restricted Subsidiary may liquidate sell, lease or dissolve otherwise transfer all or change any part of its legal form assets to the Company or to another Subsidiary, including by liquidation or dissolution; (iii) the Company and the Subsidiaries may (A) sell, transfer, lease or otherwise dispose of inventory and worn out or obsolete equipment in the ordinary course of business and (B) sell other assets (including through one or more mergers of Subsidiaries) so long as (1) the greater of the aggregate book value and the aggregate fair market value of the assets sold pursuant to this clause (B) during any fiscal year of the Company does not exceed 10% of the Consolidated Assets of the Company and the Subsidiaries as of the end of the immediately preceding fiscal year, and (2) if the Borrower determines in good faith that such action is in the best interest greater of the Borrower aggregate book value and the Restricted Subsidiaries and is aggregate fair market value of all assets so sold during such fiscal year exceeds 5% of Consolidated Assets as of the end of the immediately preceding fiscal year, the tangible assets so sold during such fiscal year do not disadvantageous to account for more than 5% of Consolidated Tangible Assets as of the Lenders in any material respect (it being understood end of such immediately preceding fiscal year; provided that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of Material Disposition, (1) no Default shall exist after giving effect to such disposition and (2) the Company shall be in compliance on a Guarantor, such Guarantor shall transfer its assets to a Loan Party, pro forma basis with the covenants set forth in Sections 6.06 and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority 6.07 as of the Liens granted under end of and for the Collateral Documents);
most recent period of four fiscal quarters for which financial statements shall have been delivered pursuant to Section 5.01, giving effect to such disposition and any related repayment of Indebtedness as if it had occurred at the beginning of such period (c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower Company shall have delivered to the Administrative Agent an officer’s a certificate of a Financial Officer setting forth computations demonstrating such pro forma compliance); and an opinion, each stating that such merger or consolidation and such supplement to this Agreement (iv) the Company or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of acquire all or substantially all the equity interests or assets of its any other Person or assets constituting a division or other business unit, including through a merger of any Person with the Company or a Subsidiary; provided that (upon voluntary liquidation A) in the case of any such acquisition involving a merger to which the Company is a party, the Company shall be the surviving or otherwiseresulting corporation and (B) in the case of any Material Acquisition, (1) no Default shall exist after giving effect to such acquisition, and (2) the Company shall be in compliance on a pro forma basis with the covenants set forth in Sections 6.06 and 6.07 as of the end of and for the most recent period of four fiscal quarters for which financial statements shall have been delivered pursuant to Section 5.01, giving effect to such acquisition and any related incurrence or repayment of Indebtedness as if it had occurred at the beginning of such period (and the Company shall have delivered to the Administrative Agent a certificate of a Financial Officer setting forth computations demonstrating such pro forma compliance).
(b) The Company will not, and will not permit any Subsidiary to, engage to any material extent that such Disposition (or series in any business other than businesses of the type conducted by the Company and the Subsidiaries on the date of this Agreement and businesses reasonably related Dispositions) is not prohibited under Section 7.05thereto.
Appears in 1 contract
Sources: Credit Agreement (Amdocs LTD)
Fundamental Changes. The Neither Holdings nor the Borrower shall not, will (nor shall it will they permit any of the Restricted Subsidiary Subsidiaries to, directly or indirectly, ) 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, except that:
(a) any Restricted Subsidiary (other than the Borrower) may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdictionjurisdiction in any State of the United States of America); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in Person or the surviving Person shall be a Domestic Restricted Subsidiary and shall expressly assume all Obligations of the Borrower ceasing pursuant to be organized under documents reasonably acceptable to the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Agent or (ii) one or more any other Restricted SubsidiariesSubsidiary; provided, in the case of this clause (ii), provided that when such transaction involves a Loan Partyany Subsidiary Guarantor is merging, a Loan Party [[3666665]] amalgamating or consolidating with another Subsidiary (A) the Subsidiary Guarantor shall be the continuing continuing, resulting or surviving Person except Person, (B) to the extent otherwise constituting an Investment (including in each case where a non-Loan Party is the continuing, resulting or surviving Person), such Investment must be a permitted by Investment in accordance with Section 7.026.08 and (C) to the extent constituting a Disposition, such Disposition must be permitted hereunder;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary (other than the Borrower or Spinco) may liquidate or dissolve or change its legal form if the Borrower Holdings determines in good faith that such action is in the best interest of the Borrower Holdings and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) and agreed that, in the case of any liquidation or dissolution of any Subsidiary that is a Subsidiary Guarantor, such Subsidiary Guarantor shall at or before the time of such dissolution transfer its assets to a Loan Party, and in the case another Subsidiary Guarantor unless such Disposition of any change in legal form, a Restricted Subsidiary that assets is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documentsotherwise permitted hereunder);
(c) any Restricted Subsidiary (other than the Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another (x) if such Restricted Subsidiary; provided that if the transferor in such a transaction Subsidiary is a GuarantorLoan Party, then a Loan Party and (iy) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, if such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party Party, Holdings or any Restricted Subsidiary, in accordance with Sections 7.02 each case, if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and 7.03, respectivelyis not materially disadvantageous to the Lenders;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement Holdings and the other Loan Documents to which Restricted Subsidiaries may consummate the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActAcquisition Transactions;
(e) any Restricted Subsidiary (other than the Borrower or Spinco) may merge, dissolve, liquidate, amalgamate or consolidate with any other or into another Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.056.12 (other than Section 6.12(b)(i)); and
(gf) any Restricted Subsidiary Investment permitted by Section 6.08 may Dispose of all be structured as a merger, consolidation or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05amalgamation.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(ai) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the a Borrower (including a merger, the purpose of which is to reorganize the a Borrower into a new jurisdictionjurisdiction in the United States); provided that such Borrower (was a newly recognized entity) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia Person and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form if the Lead Borrower determines in good faith that such action is in the best interest of the Borrower Albertson’s Group and the Restricted Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, (x) any Borrower shall remain a Restricted Borrower and (y) a Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Lead Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must be a Guarantor or the Borrower Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections Section 7.02 (other than clause (e) of the definition of “Permitted Investments”) and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the a Borrower may merge with any other Person; provided that (i) the such Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the a Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor Company’s obligations under the Loan Agreements, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Security Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (FE) the such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Security Document comply with this Agreement; provided further, further that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate merge with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or a Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted InvestmentSection 6.16;
(f) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all merger, dissolution, liquidation, consolidation or substantially all of its assets Disposition in connection with the Restatement Effective Date Transactions shall be permitted; and
(upon voluntary liquidation h) any merger, dissolution, liquidation, consolidation or otherwise) Disposition contemplated by the Rite Aid Acquisition Agreement or, to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05materially adverse to the Lenders, otherwise in connection with the Rite Aid Acquisition shall be permitted.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, 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, except that:
(ai) any Restricted Subsidiary of Holdings may merge, amalgamate amalgamate, dissolve, liquidate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdictionjurisdiction in any State of the United States or the District of Columbia); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in Person or the surviving Person shall expressly assume the obligations of the Borrower ceasing pursuant to documents reasonably acceptable to the Administrative Agent and the Borrower (or, if not the Borrower, the surviving Person) and shall be a corporation or a limited liability company organized under the laws of the United States, any State state thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any Restricted Subsidiary may merge, amalgamate, dissolve, liquidate or consolidate with any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(ib) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate the Borrower or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Restricted Subsidiary that is a Guarantor, such Guarantor Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Loan Party, Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another any Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or be or become a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted an Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreementprohibited hereunder; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Loan Party;
(d) any Restricted Subsidiary may merge, amalgamate or consolidate with, or liquidate or dissolve into, any other Person in order to effect an Investment; provided that (i) the continuing or surviving Person shall, to the extent that required by the terms hereof, have complied with the requirements of Section 6.12, (ii) to the extent constituting an Investment, such Investment must be an Investment not prohibited hereunder and (iii) to the extent constituting a Disposition, such Disposition must be permitted hereunder;
(e) the Borrower and the other Restricted Subsidiaries may consummate the Transactions and any Transition Arrangements;
(f) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or series of related Dispositionsinto another Person in order to effect a Disposition permitted pursuant to Section 7.04; and
(g) is not prohibited under Section 7.05any Investment may be structured as a merger, consolidation or amalgamation.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly may not (1) consolidate or indirectly, merge, dissolve, liquidate, consolidate merge with or into another Person, or Dispose of Person (whether in one transaction or in a series not the Borrower is the surviving Person); or (2) sell, assign, transfer, convey or otherwise dispose of related transactions) all or substantially all of the properties or assets of the Borrower and its assets Subsidiaries taken as a whole, in one or more related transactions to another Person (whether now owned or hereafter acquired) including pursuant to or in favor of any Person, except thata Division); unless:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with either: (i) the Borrower is the surviving Person; or (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (xii) the Borrower shall be the continuing Person formed by or surviving Personany such consolidation or merger (if other than the Borrower) or to which such sale, (y) such transaction does not result in the Borrower ceasing to be assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any State thereof or state of the United States, the District of Columbia and or any territory thereof (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, as the case may be, being herein called the “Successor Borrower”), ;
(Ab) the Successor Borrower shall be an entity organized or existing under (if other than the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (BBorrower) the Successor Borrower shall expressly assume assumes all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower it is a party pursuant to by executing a supplement hereto joinder or thereto one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent and the Borrower, Agent;
(Cc) immediately after such transaction no Default or Event of Default exists;
(d) each Guarantor, unless it is the Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to any such consolidation or merger that does not survive or consolidation, shall have confirmed that its Guarantee shall apply to become the Successor Borrower’s obligations ) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guarantee; and
(e) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Loan Documents, Security Agreement in connection with such transaction and (Dy) each Guarantor, unless it is the other any party to any such consolidation or merger that does not survive or consolidation, become the Successor Borrower) shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed or another document or instrument in form reasonably satisfactory to the Administrative Agent affirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party Guarantee as confirmed pursuant to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
clause (e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02above; provided that either (x) that, for the continuing or surviving Person shall purposes of this Section 7.3 only, neither a Music Publishing Sale nor a Recorded Music Sale will be deemed to be a Restricted Subsidiarysale, which together with each of its Restricted Subsidiariesassignment, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement transfer, conveyance or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose other disposition of all or substantially all of the properties or assets of the Borrower and its assets Subsidiaries taken as a whole. For the avoidance of doubt, (upon voluntary liquidation or otherwise1) the Borrower may therefore consummate a Music Publishing Sale without complying with this Section 7.3 notwithstanding anything to the extent that contrary in this Section 7.3, (2) the Borrower may therefore consummate a Recorded Music Sale without complying with this Section 7.3 notwithstanding anything to the contrary in this Section 7.3 and (3) the determination in the preceding proviso shall not affect the determination of what constitutes all or substantially all the assets of the Borrower under any other contract to which the Borrower is a party For the purpose of this Section 7.3, with respect to any sale, lease, transfer, conveyance or other disposition of properties or assets in connection with any acquisition (including any acquisition by means of a merger or consolidation with or into the Borrower or any Subsidiary), the determination of whether such Disposition sale, lease, transfer, conveyance or disposition constitutes a sale of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole shall be made on a pro forma basis giving effect to such acquisition. This Section 7.3 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Borrower and its Subsidiaries. Notwithstanding the foregoing clause (c), (x) any Subsidiary may consolidate with, merge into or series transfer all or part of related Dispositionsits properties and assets to the Borrower or to another Subsidiary and (y) is not prohibited under Section 7.05the Borrower may merge with an Affiliate incorporated solely for the purpose of reincorporating the Borrower in another state of the United States.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Restricted Subsidiary that is a Loan PartyParty is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if (x) Holdings or the Borrower determines in good faith that such action is in the best interest interests of Holdings or the Borrower and the Restricted its Subsidiaries and is if not materially disadvantageous to the Lenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in any material respect (it being understood that (other than a transaction constituting a permitted Investment under accordance with Section 7.02 or involving an Excluded Subsidiary) 7.05, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, another Loan Party after giving effect to such liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)dissolution;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorGuarantor or the Borrower, then (i) the transferee must either be the Borrower or a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under the Loan Documentsthis Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documentsthis Agreement, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documentsthis Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion 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 and priority of the Liens under the Collateral Documents and (G) such merger or consolidation is otherwise permitted by Section 7.02; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, amalgamate or consolidate merge with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall shall, to the extent required, have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment6.11;
(f) any Holdings, the Borrower and the Restricted Subsidiary Subsidiaries may effect consummate the Merger and the Secondary Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided , provided, that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in Person or the surviving Person shall expressly assume the obligations of the Borrower ceasing pursuant to be organized under documents reasonably acceptable to the laws of the United StatesAdministrative Agent, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any one or more other Restricted Subsidiaries; , provided, in the case of this clause (ii), that when such transaction involves a Loan Partyany Guarantor is merging with another Restricted Subsidiary, a Loan Party (A) the Guarantor shall be the continuing or surviving Person except or (B) to the extent otherwise constituting an Investment, such Investment must be a permitted by Section 7.02Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted its Subsidiaries and is not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Subsidiary that is a Guarantor, such Guarantor Subsidiary shall at or before the time of such dissolution transfer its assets to another Subsidiary that is a Loan Party, Guarantor; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided provided, that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower any Restricted Subsidiary may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided provided, that either (xi) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 6.12 or (ii) to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute constituting an Investment, such Investment must be a permitted Investment;Investment in accordance with Section 7.02; and
(fe) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
7.05 (g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under other than Section 7.057.05(e)(A)).
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Person or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan Party is merging with a Restricted Subsidiary that is not a Loan Party, a the Loan Party shall be the continuing or surviving Person except or the surviving entity shall substantially concurrently become a Loan Party; AMERICAS 94626185 provided, further, that any security interests granted to the Administrative Agent for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been or will promptly be taken, in each case, as required by Sections 6.11 or 6.13 to the extent otherwise constituting an Investment permitted by Section 7.02required pursuant to the Collateral and Guarantee Requirement;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) any Restricted Subsidiary may liquidate or dissolve or and (iii) any Restricted Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interest of the Borrower and the its Restricted Subsidiaries and is not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Subsidiary Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e) or 7.02(h)) and 7.03, respectively;
(d) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation corporation; provided, further, that any security interests granted to the Administrative Agent for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation), the Successor Company shall, to the extent subject to the terms hereof, have complied with the requirements of Section 6.11 and all actions required to maintain said perfected status have been or will promptly be taken as required by Section 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement; or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, States or any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral DocumentsColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral 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 Collateral Administrative Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that AMERICAS 94626185 such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its such surviving Person’s Subsidiaries that are Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 or 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted InvestmentRequirement;
(f) any the Borrower and the Restricted Subsidiary Subsidiaries may effect consummate the Acquisition, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(g) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any 7.05 or a Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) Payment permitted pursuant to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.057.06.
Appears in 1 contract
Sources: First Lien Credit Agreement (Jason Industries, Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, 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, except thatthat (other than in the case of clause (e) below) so long as no Event of Default would result therefrom:
(ai) any Restricted Subsidiary of the Parent may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdictionjurisdiction in any State of the United States); provided that the 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 surviving Person shall be organized under the laws of the United States, any state thereof or the District of Columbia, or (wii) no Event of Default exists any Restricted Subsidiary may merge, amalgamate or would result therefrom, consolidate with any one or more other Restricted Subsidiaries; provided that when any Guarantor is merging with another Restricted Subsidiary that is not a Loan Party (x) the Borrower Guarantor shall be the continuing or surviving Person, (y) to the extent constituting an Investment, such transaction does Investment must be a Permitted Investment or Indebtedness of a Restricted Subsidiary which is not result a Loan Party in the Borrower ceasing to be organized under the laws of the United Statesaccordance with Section 7.01, any State thereof or the District of Columbia respectively and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment a Disposition, such Disposition must be permitted by Section 7.02hereunder;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Parent or any Restricted Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Borrower Parent determines in good faith that such action is in the best interest of the Borrower Parent and the Restricted its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Restricted Subsidiary that is a Guarantor, such Guarantor Subsidiary shall at or before the time of such dissolution transfer its assets (if any) to another Restricted Subsidiary that is a Loan Party, Guarantor in the same national jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent unless such Disposition of assets is otherwise permitted hereunder; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another any Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must either be the Parent or a Guarantor in the same national jurisdiction or a different jurisdiction reasonably satisfactory to the Borrower or Administrative Agent and (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03Section 7.01, respectively;
(d) so long as no Event of Default exists or would result therefrom; provided, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary Loan Party may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Loan Party;
(d) any Restricted Subsidiary may merge, amalgamate or consolidate with, or dissolve into, any other Person in order to effect a Permitted Investment; provided that (i) the continuing or surviving Person shall, to the extent that subject to the terms hereof, have complied with the requirements of Section 6.12 and (ii) to the extent constituting an Investment, such Investment must be a Permitted Investment and (iii) to the extent constituting a Disposition, such Disposition must be permitted hereunder;
(e) the Parent and the Restricted Subsidiaries may consummate the Transactions;
(f) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or series into another Person in order to effect a Disposition permitted pursuant to Section 7.04;
(g) any Permitted Investment may be structured as a merger, consolidation or amalgamation; and
(h) any Restricted Subsidiary may merge, amalgamate, consolidate with or dissolve into another Person, or Dispose of related Dispositionsall of its assets in a transaction intended in good faith to improve the Tax efficiency of the Parent and/or its Subsidiaries, provided that (i) is after giving effect to such transaction, the security interests of the Collateral Agent in the Collateral, taken as a whole, and the value of the Guarantees, taken as a whole, are not prohibited under Section 7.05adversely impaired and (ii) the Parent shall provide the Administrative Agent with prior notice of such proposed reorganization.
Appears in 1 contract
Fundamental Changes. (a) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly not consolidate or indirectly, merge, dissolve, liquidate, consolidate merge with or into another Person(or be consolidated or merged with or into) or wind up into (or be wound up into) (whether or not the Borrower is the surviving entity), or Dispose of (whether in one transaction sell, assign, transfer, lease, convey or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation properties or otherwise) assets, in one or more related transactions, to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;any Person unless:
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be is the continuing surviving entity or surviving corporation or (ii) if the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or consolidation to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is not the Borrower (any such Persona corporation, the “Successor Borrower”)partnership, (A) the Successor Borrower shall be an limited liability company or similar entity organized or existing under the Laws laws of the United States, any state thereof or the District of Columbia and (such transaction shall not have an adverse effect in any material respect on Person, as the perfection or priority of case may be, being herein called the Liens granted under the Collateral Documents, “Successor Borrower”);
(Bii) the Successor Borrower shall Borrower, if other than the Borrower, expressly assume assumes all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or and thereto in form and substance reasonably satisfactory to the Administrative Agent Agent;
(iii) immediately after such transaction, no Default or Event of Default exists;
(iv) immediately after giving Pro Forma Effect to such transaction and any related financing transactions, at the Borrowertime of determination based on the most recently completed Test Period, either the (Ca) Total Net Leverage Ratio of the Successor Borrower would not be greater than the Total Net Leverage Ratio of the Borrower (i) immediately prior to such transaction or (ii) as of the Closing Date, or (b) the Borrower and its Restricted Subsidiaries on a consolidated basis would have had an Interest Coverage Ratio of at least 2.00 to 1.00;
(v) unless the Borrower is the surviving Person, each Guarantor, unless it is the other party to such merger or consolidationthe transactions described above, in which case Section 9.8(e)(ii) shall apply, shall have by a Guarantor Joinder Agreement confirmed that its Guarantee shall apply to the Successor Borrowersuch Person’s obligations under the Loan Documents, this Agreement;
(D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (Fvi) the Borrower shall have delivered to the Administrative Agent a certificate of an officer’s certificate Authorized Officer and (unless the Borrower is the surviving person) an opinionopinion of counsel, each stating that such consolidation, merger or consolidation transfer and such supplement to this Agreement or any Collateral Document Guarantor Joinder Agreements, if any, comply with this AgreementAgreement and an opinion of counsel to the effect that such Guarantor Joinder Agreement (if any) has been duly authorized, executed and delivered and is a legal, valid and binding agreement enforceable against the Successor Borrower; provided further, that if and
(vii) unless the foregoing are satisfied (or waived)Borrower is the survivng Person, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any Administrative Agent shall have received all documentation and other information about the Successor Borrower as shall have been to the extent reasonably requested in writing by the Administrative Agentthat any Lender, the Collateral Agent Issuing Bank or any Lender through the Administrative Agent that shall have reasonably determined is required by regulatory authorities or under applicable “know your customer,” sanctions and anti-money laundering rules and regulations, including without limitation limitation, the USA Patriot Act;Act and such Lender, Issuing Bank, or the Administrative Agent, as applicable, shall be reasonably satisfied that its review of such documentation and information delivered complies with such applicable “know your customer,” sanctions and anti-money laundering rules and regulations.
(eb) The Successor Borrower shall succeed to, and be substituted for the Borrower, as the case may be, under this Agreement. Notwithstanding clauses (iii) and (iv) of Section 9.8(a):
(i) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person or merge into (other than or be consolidated or merged with or into) or transfer all or part of its properties and assets to the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(gii) the Borrower may merge (or be merged) with an Affiliate of the Borrower solely for the purpose of reincorporating the Borrower in a State of the United States so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not increased thereby.
(c) [Reserved].
(d) [Reserved].
(e) No Subsidiary Guarantor shall, and the Borrower shall not permit any Restricted Subsidiary Guarantor to, consolidate or merge with or into (or be consolidated or merged with or into) or wind up into (or be wound up into) (whether or not the Subsidiary Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(i) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability company or trust or similar entity organized or existing under the laws of the jurisdiction of organization of such Guarantor, as the case may Dispose be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof or jurisdiction of incorporation or formation of such Guarantor (such Guarantor or such Person, as the case may be, being herein called the “Successor Person”);
(ii) the Successor Person, if other than a Guarantor, expressly assumes all the obligations of such Guarantor under this Agreement pursuant to a Guarantor Joinder Agreement;
(iii) immediately after such transaction, no Default or Event of Default exists; and
(iv) if the Successor Person is a Person other than a Guarantor, the Borrower shall or shall cause the Successor Person to have delivered to the Administrative Agent a certificate of an Authorized Officer and an opinion of counsel, each stating that such consolidation, merger or transfer and such Guarantor Joinder Agreement, if any, complies with this Agreement; provided, however, that the following shall be permitted:
(A) the transaction is made in compliance with Section 9.5; or
(B) such Guarantor is liquidated and all or substantially all of its assets (if any) are acquired by a Loan Party.
(f) In the case of Section 9.8(e)(i), the Successor Person shall succeed to, and be substituted for, such Guarantor under this Agreement. Notwithstanding anything to the contrary herein, any Guarantor may merge into (or be merged into) or transfer all or part of its properties and assets to another Guarantor or the Borrower.
(g) Neither the Borrower nor any Subsidiary Guarantor shall consummate a Division as the Dividing Person, except that any Subsidiary Guarantor that is a LLC may consummate a Division as the Dividing Person if, immediately upon voluntary liquidation the consummation of the Division, the assets of the applicable Dividing Person are held by one or otherwise) more Restricted Subsidiaries at such time or, with respect to assets not so held by one or more Restricted Subsidiaries, such Division, in the aggregate, would otherwise result in a disposition of assets permitted by Section 9.5(a); provided that each Division Successor shall also become a Loan Party to the extent that such Disposition (or series of related Dispositions) is not prohibited under required by and in accordance with Section 7.058.8.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (LEGALZOOM.COM, Inc.)
Fundamental Changes. The Borrower shall notEnter into any merger, nor shall it permit any Restricted Subsidiary toconsolidation or amalgamation, directly or indirectly, merge, dissolve, liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation or dissolution), or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned property or hereafter acquired) to or in favor of any Personbusiness, except that:
(a) any Restricted Subsidiary So long as no Default or Event of Default shall have occurred and be continuing, the Borrower may merge, amalgamate merge or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower or into a new jurisdiction)any other Person; provided that (w) no Event of Default exists or would result therefrom, (xA) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof Person or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), x) a corporation or (Ay) the Successor Borrower shall be an entity partnership or limited liability company organized or existing under the Laws laws of the United States, any state thereof or the District of Columbia (such Person, if not the Borrower, the “Successor Borrower”), and, in the case of clause (y), the Lenders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such merger or consolidation and such transaction shall not have an adverse effect in any material respect will be subject to federal income tax on the perfection same amounts, in the same manner and at the same times as would have been the case if such merger or priority of the Liens granted under the Collateral Documentsconsolidation had not occurred, (B) the Successor Borrower shall (if applicable) expressly assume assumes all the obligations of the Borrower under this Agreement the Loan Documents and the other Loan Documents to which the Borrower is a party Loans pursuant to a supplement hereto an assumption agreement or thereto other documents or instruments in form reasonably satisfactory to the Administrative Agent and the BorrowerAgents, (C) each Guarantor, unless by supplement to the Domestic Subsidiary Guarantee, confirms that the guarantee made by it is the other party to such merger or consolidation, shall have confirmed that its Guarantee pursuant thereto shall apply to the Successor Borrower’s obligations under the Loan Documentsthis Agreement, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the each applicable Security Agreement and other applicable Collateral Documents confirmed Document, confirms that the collateral liens granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documentsthis Agreement, (E) if reasonably requested by the Collateral AgentAdministrative Agents, 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 Trustee, confirms that the collateral liens granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documentsthis Agreement, and (F) the Borrower each Lender shall have received, to the extent not previously delivered to the Administrative Agent an officer’s certificate and an opinionsuch Lender, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any all documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by bank regulatory authorities or authority under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActPATRIOT Act and (G) the Borrower delivers to the Administrative Agents an officer’s certificate and an opinion of counsel to the effect that such merger or consolidation, and the supplements referred to in the preceding clauses, comply with this Agreement. Notwithstanding the foregoing, the Borrower and any of its Restricted Subsidiaries may (x) merge with an Affiliate that has no material assets or liabilities and that is incorporated or organized solely for the purpose of reincorporating or reorganizing the Borrower, as the case may be, in any state of the United States or the District of Columbia and (y) may otherwise convert its legal form under the laws of its jurisdiction of organization. The Lenders hereby authorize the Administrative Agents to enter into and deliver such agreements, amendments and modifications to the Loan Documents as are necessary to effectuate any such transaction consummated pursuant to this clause (a) and to substitute the Successor Borrower for the Borrower under the Loan Documents and the Loans;
(b) So long as no Default or Event of Default shall have occurred and be continuing, any Person may merge into or consolidate with or amalgamate with any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary and (if any party to such merger or consolidation or amalgamation is a Guarantor or a Wholly Owned Subsidiary Guarantor) a Guarantor or a Wholly Owned Subsidiary Guarantor, as the case may be;
(c) any Group Member may Dispose of any or all of its assets (including transfers of Intercompany Loans or equity Investments) to any other Group Member; provided that if the Borrower or any Restricted Subsidiary that is not an Excluded Subsidiary Disposes of assets to a Restricted Subsidiary that is an Excluded Subsidiary, such Disposition complies with Section 6.08(h), (u) or (x);
(d) any Investment expressly permitted by Section 6.08 may be structured as a merger, consolidation or amalgamation;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each has Disposed of all of its Restricted Subsidiaries, shall have complied with the requirements of assets as permitted under this Section 6.11 to the extent required pursuant to the Collateral 6.04 and Guarantee Requirement Section 6.05 or (y) the transaction shall otherwise constitute a permitted Investmenthas no assets may be liquidated;
(f) any Restricted Subsidiary the Group Members may effect a mergerconsummate the transactions contemplated under (i) the Tax Restructuring, dissolution, liquidation (ii) the Business Segmentation Restructuring Plan or consolidation, (iii) the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; andPermitted Corporate Structure Transactions;
(g) any Restricted Subsidiary Joint Venture may Dispose be liquidated; provided that (x) the assets and liabilities thereof are distributed to the owners of all or substantially all of its assets such Joint Venture, pro rata, in accordance with such owners’ respective equity interests in such Joint Venture and (upon voluntary liquidation or otherwisey) the Net Cash Proceeds thereof are applied to prepay the Loans, to the extent required by Section 2.15 or Section 2.16, as applicable; and
(h) any Restricted Subsidiary that such Disposition (or series of related Dispositions) is not prohibited a Guarantor may be liquidated or dissolved after the 2014 Amendment Effective Date (i) into a Group Member or (ii) to effectuate a Disposition permitted under Section 7.056.05.
Appears in 1 contract
Sources: Term Loan and Revolving Credit Agreement (Federal-Mogul Holdings Corp)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, liquidate or consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate merge or consolidate with (i) the Borrower and Holdings may merge or consolidate with the Borrower (in each case including a merger, merger the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction merger or consolidation does not result in the Borrower ceasing to be organized incorporated under the laws Laws of any state of the United States, any State thereof States or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of a merger or consolidation of Holdings with and into the Borrower, after giving effect to such merger or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this clause (ii), that when such transaction involves Agreement and the other Loan Documents to which Holdings is a Loan Party, party pursuant to a Loan Party shall be the continuing supplement hereto or surviving Person except thereto in form reasonably satisfactory to the extent otherwise constituting an Investment permitted by Section 7.02Administrative Agent;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest interests of the Borrower and the its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must be a Guarantor or the Borrower 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 in, or such Indebtedness of must be Indebtedness of, a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws laws of the United States▇▇▇▇▇▇ ▇▇▇▇▇▇, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto an agreement or thereto agreements in form and substance reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have have, pursuant to an agreement or agreements in form and substance reasonably satisfactory to the Administrative Agent, confirmed that (x) its Guarantee of the Obligations shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security this Agreement and other applicable Collateral Documents confirmed that (y) the collateral Liens granted by it under the Collateral Documents to which it is a party as security for its Obligations shall continue to secure such obligations and that its obligations thereunder under the Collateral Documents to which it is a party shall apply to secure its and the Successor Borrower’s obligations under the Loan Documentsthis Agreement, (ED) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Administrative Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, Obligations and (FE) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement agreement or agreements referred to this Agreement or any Collateral Document above comply with this Agreement; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (other than the Borroweri) in order to effect an Investment permitted pursuant to Section 7.027.02 or (ii) for any other purpose; provided that either (xA) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 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 pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted InvestmentAdministrative Agent;
(f) any Restricted Subsidiary the Transactions may effect be consummated; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Sources: Credit Agreement (Primedia Inc)
Fundamental Changes. The None of Holdings, the Borrower or any of the Restricted Subsidiaries shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, 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, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdictionjurisdiction in the United States); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Person or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted its Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Holdings or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 3 and 7.034, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerLender, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral AgentLender, each mortgagor of a Mortgaged Propertymortgaged property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage mortgage (or other instrument reasonably satisfactory to the Collateral AgentLender) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s Lender a certificate of a Responsible Officer and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate merge with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.024; provided that either (x) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 19 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted InvestmentRequirement;
(f) any Restricted Subsidiary may effect [reserved]; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationdisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.056.
Appears in 1 contract
Sources: Third Lien Credit Agreement (Delta Tucker Holdings, Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary Person may merge, amalgamate merge or consolidate with the Borrower in a transaction in which the surviving entity is the Borrower or another direct or indirect Domestic Subsidiary of AAMI that is an Affiliate of the Borrower; provided, that, (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of has assumed all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents and with respect to which the Borrower is Obligations in a party pursuant to a supplement hereto or thereto in form manner reasonably satisfactory to the Administrative Agent and the Borrowerand, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations extent outstanding at such time, under the DDTL Loan Documents, (Dii) each Guarantor, unless it is the other party to such merger or consolidation, Lenders shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, received (EA) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any all documentation and other information about the Successor resulting Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by bank regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActPATRIOT Act and (B) to the extent that the resulting Borrower qualifies as a “legal entity customer” under the requirements of the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the resulting Borrower, (iii) after giving Pro Forma Effect to such merger or consolidation and assumption, such Subsidiary shall be in compliance with the financial covenants set forth in Section 7.10 on a Pro Forma Basis, (iv) such Subsidiary shall deliver such Organization Documents, certificates, and other documentation required by Section 4.01(b) as if it had been the “Borrower” on the Closing Date, and (v) the Administrative Agent shall have received a customary opinion of counsel for such ▇▇▇▇▇▇▇▇▇▇, addressed to the Administrative Agent, the Lenders, and the L/C Issuers;
(eb) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) may merge or consolidate with any Covered Subsidiary in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) a transaction in which the continuing or surviving Person shall be entity is a Restricted Covered Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(gc) any Restricted Covered Subsidiary may Dispose be wound up, liquidated, or dissolved; provided, that, (i) the Borrower determine in good faith that the winding up, liquidation, or dissolution of all such Covered Subsidiary is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (ii) the Disposition of any assets of such Covered Subsidiary held immediately prior to such winding up, liquidation, or substantially all of its assets dissolution must otherwise be permitted by Section 7.04, and (upon voluntary liquidation or otherwiseiii) to the extent that such Disposition (winding up, liquidation, or series dissolution results in a merger or a consolidation of related Dispositions) is not prohibited under such Covered Subsidiary, such merger, amalgamation, or consolidation must otherwise be permitted by this Section 7.057.3.
Appears in 1 contract
Sources: Revolving Credit Agreement (Acadian Asset Management Inc.)
Fundamental Changes. (a) The Borrower shall will not, nor shall it and will not permit any Restricted Material Subsidiary to, directly merge into or indirectly, merge, dissolve, liquidate, 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 (in one transaction 48 44 or in a series of related transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Material Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) the Borrower may merge into or consolidate with any Person if the surviving Person is a domestic entity and expressly assumes the obligations of the Borrower under this Agreement, (iii) the Borrower may sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all of its assets to any Person if the acquiring Person is a domestic entity and expressly assumes the obligations of the Borrower under this Agreement or is a Wholly Owned Subsidiary of the Borrower, (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(aiv) any Restricted Subsidiary Person may merge, amalgamate merge into or consolidate with any Subsidiary in a transaction in which the surviving entity is a Subsidiary, (iv) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower (including a merger, the purpose of which is or to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia another Subsidiary and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(ivi) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted SubsidiaryLenders; provided that if the transferor in any such merger involving a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which Person that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;Wholly Owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.03.
(db) so long as no Event The Borrower will not, and will not permit any of Default exists or its Subsidiaries to, engage to any material extent in any business that would result therefrom, change the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws character of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations business of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with taken as a whole, from that in existence on the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05Effective Date.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, 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, Person except that:
(ai) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the a Borrower (including a merger, the purpose of which is to reorganize the a Borrower into a new jurisdictionjurisdiction in the United States); provided that such Borrower (was a newly recognized entity) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia Person and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form if the Lead Borrower determines in good faith that such action is in the best interest of the Borrower Albertson’s Group and the Restricted Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, (x) any Borrower shall remain a Restricted Borrower and (y) a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder) and such transaction shall not have an adverse effect on the perfection (iii) any Immaterial Subsidiary may liquidate or priority of the Liens granted under the Collateral Documents)dissolve;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Lead Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must be a Guarantor or the Borrower Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections Section 7.02 (other than clause (e) of the definition of “Permitted Investments”) and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the a Borrower may merge with any other Person; provided that (i) the such Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the a Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor Company’s obligations under the Loan Agreements, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Security Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (FE) the such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Security Document comply with this Agreement; provided further, further that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate merge with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary or a Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;Section 6.16; and
(f) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate merge with or consolidate with liquidate into (i) the anythe Borrower (including a merger, the purpose of which is to reorganize the anythe Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, jurisdiction so long as (x) the US Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be remains organized under the laws of the United States, any State state thereof or the District of Columbia and (zy) such transaction does not have an adverse effect in any material respect on the perfection BV Borrower remains organized under the Laws of its current jurisdiction or priority the laws of the Liens granted under United States, any state thereof or the Collateral Documents District of Columbia (the requirements set forth in this clause (y) and the foregoing clause (x), collectively, the(the “Jurisdictional Requirements”)); provided that suchthe Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of suchthe Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) STBV or any one or more other Restricted SubsidiariesSubsidiaries other than the Borrower; provided, in the case of this clause (ii), provided that when such transaction involves any Restricted Subsidiary that is a Loan PartyParty is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person except or (B) to the extent otherwise constituting an Investment, such Investment must be an Investment permitted by Section 7.027.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary (other than anythe Borrower) may liquidate or dissolve or change its legal form if the Borrower BV BorrowerSTBV determines in good faith that such action is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority business of the Liens granted under the Collateral Documents);BV BorrowerSTBV and its Subsidiaries; NYDOCS01/1760806.13
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower BV BorrowerSTBV or any Restricted Subsidiary may merge with any other Person; provided that Person in order to (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; 7.02 (provided that either (xA) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 6.12 and (B) to the extent required constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02) or (ii) to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 6.15; provided that if anythe Borrower is a party to any transaction effected pursuant to this Section 7.04(c), (1) suchthe Borrower shall be the Collateral continuing and Guarantee Requirement surviving Person or the continuing or surviving Person shall expressly assume the obligations of suchthe Borrower in a manner reasonably acceptable to the Administrative Agent and (y2) the transaction Jurisdictional Requirements shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05be satisfied; and
(gd) any the BV Borrower and its Restricted Subsidiary Subsidiaries may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to consummate the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.Permitted Reorganization; and
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holding PLC)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly may not (1) consolidate or indirectly, merge, dissolve, liquidate, consolidate merge with or into another Person, or Dispose of Person (whether in one transaction or in a series not the Borrower is the surviving Person); or (2) sell, assign, transfer, convey or otherwise dispose of related transactions) all or substantially all of the properties or assets of the Borrower and its assets (whether now owned Subsidiaries taken as a whole, in one or hereafter acquired) more related transactions to or in favor of any another Person, except that; unless:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with either: (i) the Borrower is the surviving Person; or (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (xii) the Borrower shall be the continuing Person formed by or surviving Personany such consolidation or merger (if other than the Borrower) or to which such sale, (y) such transaction does not result in the Borrower ceasing to be assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any State thereof or state of the United States, the District of Columbia and or any territory thereof (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, as the case may be, being herein called the “Successor Borrower”), ;
(Ab) the Successor Borrower shall be an entity organized or existing under (if other than the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (BBorrower) the Successor Borrower shall expressly assume assumes all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower it is a party pursuant to by executing a supplement hereto joinder or thereto one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent Agent;
(c) immediately after such transaction no Default or Event of Default exists;
(d) immediately after giving pro forma effect to such transaction and any related financing transactions, as if the Borrowersame had occurred at the beginning of the applicable four-quarter period, either
(Ci) the Successor Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 8.1(a); or
(ii) the Fixed Charge Coverage Ratio for the Successor Borrower and its Restricted Subsidiaries would be equal to or greater than such ratio for the Borrower and its Restricted Subsidiaries immediately prior to such transaction;
(e) each Guarantor, unless it is the Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to any such consolidation or merger that does not survive or consolidation, shall have confirmed that its Guarantee shall apply to become the Successor Borrower’s obligations ) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guarantee; and
(f) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Loan Documents, Security Agreement in connection with such transaction and (Dy) each Guarantor, unless it is the other any party to any such consolidation or merger that does not survive or consolidation, become the Successor Borrower) shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed or another document or instrument in form reasonably satisfactory to the Administrative Agent affirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party Guarantee as confirmed pursuant to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
clause (e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02above; provided that either (x) that, for the continuing or surviving Person shall purposes of this Section 8.6 only, neither a Music Publishing Sale nor a Recorded Music Sale will be deemed to be a Restricted Subsidiarysale, which together with each of its Restricted Subsidiariesassignment, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement transfer, conveyance or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose other disposition of all or substantially all of the properties or assets of the Borrower and its assets Subsidiaries taken as a whole. For the avoidance of doubt, (upon voluntary liquidation or otherwise1) the Borrower may therefore #88946885v8 consummate a Music Publishing Sale in accordance with Section 8.3 without complying with this Section 8.6 notwithstanding anything to the extent that contrary in this Section 8.6, (2) the Borrower may therefore consummate a Recorded Music Sale in accordance with Section 8.3 without complying with this Section 8.6 notwithstanding anything to the contrary in this Section 8.6 and (3) the determination in the preceding proviso shall not affect the determination of what constitutes all or substantially all the assets of the Borrower under any other contract to which the Borrower is a party. For the purpose of this Section 8.6, with respect to any sale, lease, transfer, conveyance or other disposition of properties or assets in connection with any acquisition (including any acquisition by means of a merger or consolidation with or into the Borrower or any Restricted Subsidiary), the determination of whether such Disposition sale, lease, transfer, conveyance or disposition constitutes a sale of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole shall be made on a pro forma basis giving effect to such acquisition. This Section 8.6 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Borrower and its Restricted Subsidiaries. Notwithstanding the foregoing clauses (c) and (d), (x) any Restricted Subsidiary may consolidate with, merge into or series transfer all or part of related Dispositionsits properties and assets to the Borrower or to another Restricted Subsidiary and (y) the Borrower may merge with an Affiliate incorporated solely for the purpose of reincorporating the Borrower in another state of the United States so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not prohibited under Section 7.05increased thereby.
Appears in 1 contract
Sources: Incremental Commitment Amendment (Warner Music Group Corp.)
Fundamental Changes. The Borrower shall not, nor shall it the Borrower permit any Restricted Subsidiary to, directly consolidate, amalgamate or indirectly, merge, dissolve, liquidate, consolidate 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 PersonPerson (other than as part of the Transactions), except that:
(a1) any Restricted Subsidiary may merge, amalgamate merge or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that that
(w) no Event of Default exists or would result therefrom, (xa) the Borrower shall be the continuing or surviving Person, ,
(yb) such transaction merger or consolidation does not result in the Borrower ceasing to be organized under the laws Laws of the United States, any State state thereof or the District of Columbia and and
(za) such transaction does any Subsidiary that is not have an adverse effect a Loan Party may merge or consolidate with or into any other Subsidiary 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;
(c) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party or Subsidiary in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, another jurisdiction in the case of this clause (ii), United States will be permitted; provided that when if such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;Person; and
(id) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders in any material respect (it being understood Lenders; provided that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation clause (d), the Person who receives the assets of such dissolving or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted liquidated Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction disposition shall otherwise constitute a be permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.7.13;
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, 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, except that, so long as (other than in the case of clause (e)) no Event of Default would result therefrom:
(a) any Restricted Subsidiary (or any other Person) may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdictionjurisdiction in any State of the United States of America); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, Person or the surviving Person (y) such transaction does not result which shall be a Person incorporated or organized in the Borrower ceasing to be organized under the laws any State of the United States, any State thereof States of America or the District of Columbia and (zColumbia) such transaction does not have an adverse effect in any material respect on shall expressly assume the perfection or priority obligations of the Liens granted under Borrower pursuant to documents reasonably acceptable to the Collateral Documents Administrative Agent or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves a Loan Party, any Guarantor is merging with another Restricted Subsidiary that is not a Loan Party (A) the Guarantor shall be the continuing or surviving Person except or the continuing or surviving Person shall become a Guarantor, (B) to the extent otherwise constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02 or (C) to the extent constituting a Disposition, such Disposition must be permitted in accordance with Section 7.05; provided that any Restricted Subsidiary may take any actions otherwise prohibited by this clause (a) to the extent necessary to comply with the requirements of Section 7.026.12 or Section 6.14;
(b) (i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Restricted Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the its Restricted Subsidiaries taken as a whole and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Restricted Subsidiary that is a Guarantor, such Guarantor Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Loan Party, Guarantor unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on Guarantor is otherwise permitted to cease being a Guarantor hereunder); provided that any Restricted Subsidiary may take any actions otherwise prohibited by this clause (b) to the perfection extent necessary to comply with the requirements of Section 6.12 or priority of the Liens granted under the Collateral Documents)Section 6.14;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another any Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a by Section 7.02; provided that any Restricted Subsidiary which is not a Loan Party in accordance may take any actions otherwise prohibited by this clause (c) to the extent necessary to comply with Sections 7.02 and 7.03, respectivelythe requirements of Section 6.12 or Section 6.14;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with with, or dissolve into, any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiaryshall, which together with each of its Restricted Subsidiariesto the extent subject to the terms hereof, shall have complied with the requirements of Section 6.11 6.12; provided, further, that any Restricted Subsidiary may take any actions otherwise prohibited by this clause (d) to the extent required pursuant necessary to comply with the Collateral and Guarantee Requirement requirements of Section 6.12 or Section 6.14;
(ye) the transaction shall otherwise constitute a permitted InvestmentBorrower and the other Restricted Subsidiaries may consummate the Transactions;
(f) subject to Section 7.04(a)(i), the Borrower or any Restricted Subsidiary may effect a mergermerge, dissolutionamalgamate, liquidation or consolidation, consolidate (and in the purpose case of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Subsidiary, dissolve or liquidate) with or into another Person, engage in an Asset Swap Transaction or Dispose of all or substantially all of its assets order to effect a Disposition permitted pursuant to Section 7.05 (upon voluntary liquidation other than Section 7.05(d)(A)); and
(g) any Investment permitted by Section 7.02 may be structured as a merger, consolidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05amalgamation.
Appears in 1 contract
Fundamental Changes. The Borrower shall notMerge, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeamalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (other than as permitted under Section 7.05) (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) so long as no Event of Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, (x) provided that the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Subsidiary that is a Loan PartyGuarantor is merging with another Subsidiary, a Loan Party the Subsidiary that is the Guarantor shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(ib) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor;
(iic) to after the extent constituting an InvestmentFunding Date, such Investment must be any merger, amalgamation or consolidation that constitutes a permitted Investment in or Indebtedness of Permitted Acquisition by a Restricted Subsidiary which is not Loan Party, so long as a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyis the surviving Person;
(d) so long as no Event of Default exists or would result therefrom, Holdings may engage in the Borrower SuperHoldings Formation Transaction; and
(e) Holdings may merge with any other Personengage in the Holdings Merger; provided that that:
(i) Holdings is the Borrower shall be survivor of the continuing or surviving corporation or Holding Merger,
(ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), merging with and into Holdings (A) the Successor Borrower shall be an entity a Solvent corporation, limited liability company or limited partnership organized or and existing under the Laws laws of the United States, States or any state thereof or (including the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral DocumentsColumbia), (B) shall have no other Indebtedness or other obligations or liabilities (other than incidental to the Successor Borrower shall expressly assume all the obligations consummation of the Borrower under this Agreement Holdings Merger and the other Loan Documents de minimus obligations or liabilities) or any Liens upon any of its property or assets, in each case immediately prior to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory giving effect to the Administrative Agent Holdings Merger, and the Borrower, (C) each Guarantor, unless it is the shall not have engaged in any business or activity or own any assets (other party than de minimus assets) at any time prior to such merger or consolidation, shall have confirmed that its Guarantee shall apply giving effect to the Successor Borrower’s Holdings Merger, other than performing its obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement and activities incidental to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement consummation of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActHoldings Merger;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (xiii) the continuing Holdings Merger is consummated on or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 prior to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05Funding Date; and
(giv) any Restricted Subsidiary may Dispose the aggregate amount of all or substantially all consideration paid by Holdings and its Subsidiaries in connection with the consummation of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is Holdings Merger shall not prohibited exceed the amount permitted under Section 7.057.06(m) hereof.
Appears in 1 contract
Sources: Revolving Credit Agreement (Keystone Automotive Operations Inc)
Fundamental Changes. (a) The Borrower shall will not, nor shall it and will not permit any Restricted Subsidiary to, directly (x) merge into or indirectly, merge, dissolve, liquidate, consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, (y) sell, transfer, license, lease, enter into any sale-leaseback transactions with respect to, or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its the assets of the Borrower and the Restricted Subsidiaries, taken as a whole (in each case, whether now owned or hereafter acquired) to or in favor of any Person(z) liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party or any other Person may merge, amalgamate merge into or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is a transaction in the best interest of (A) which the Borrower and is the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (iiB) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A1) the Successor Borrower shall be an entity organized incorporated or existing formed under the Laws laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral DocumentsColumbia, (B2) the Successor Borrower shall expressly assume assumes in writing all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party Borrower’s Secured Obligations pursuant to a supplement hereto or thereto in form documentation reasonably satisfactory to the Administrative Agent and satisfies the Collateral and Guarantee Requirement, (3) each Loan Party other than the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, amalgamation or consolidation, shall have confirmed reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the a Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security this Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F4) the Borrower shall have delivered to the Administrative Agent an officer’s a certificate of a Responsible Officer and an opinionopinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply complies with this Agreement; provided furtherthat (x) if such Person is not a Loan Party, that no Event of Default exists after giving effect to such merger or consolidation and (y) if the foregoing requirements are satisfied (or waived)satisfied, the a Successor Borrower will succeed to, and be substituted for, the Borrower under this AgreementAgreement and the other Loan Documents; provided further provided, further, that the Borrower agrees or the Successor Borrower provides to provide any the Administrative Agent all documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the USA Patriot Act, reasonably requested by the Administrative Agent (or any Lender, through the Administrative Agent), with results reasonably satisfactory to the Administrative Agent;
(eii) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) may merge into or consolidate with any Restricted Subsidiary in order to effect an Investment permitted pursuant to Section 7.02; a transaction in which the surviving entity is a Restricted Subsidiary (provided that either (x) any such merger or consolidation involving a Guarantor shall not result in the continuing transfer of all or surviving Person shall be a Restricted Subsidiary, which together with each substantially all of the assets of the Borrower and its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 taken as a whole, to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted InvestmentPerson that is not a Guarantor);
(fiii) any Restricted Subsidiary may sell, transfer, license, lease or otherwise dispose of its assets to the Borrower or to another Restricted Subsidiary; provided that any such disposition under this clause (iii) that is made to a Restricted Subsidiary that is not a Loan Party shall in no event be permitted if it would comprise all or substantially all of the assets of the Borrower and its Restricted Subsidiaries, taken as a whole;
(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 the Borrower and is not materially disadvantageous to the Lenders; and
(v) any Restricted Subsidiary may effect any merger or consolidation that constitutes an Investment, sale or other disposition that does not involve a merger, dissolution, liquidation transfer or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose other disposition of all or substantially all of the assets of the Borrower and its assets Restricted Subsidiaries, taken as a whole.
(upon voluntary liquidation b) The Borrower and its Restricted Subsidiaries, taken as a whole, will not engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and businesses reasonably related, complementary, ancillary or otherwise) to incidental thereto or that constitute reasonable extensions thereof which includes, for the extent that such Disposition (avoidance of doubt, any vertical or series of related Dispositions) is not prohibited under Section 7.05horizontal integration.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Subsidiary that is a Loan PartyGuarantor is merging with a Subsidiary that is not a Guarantor, a Loan Party shall be the continuing or surviving Person except shall either be the Guarantor or such Person shall be a Material Subsidiary and such Person (and, if applicable, its Domestic Subsidiaries) shall have complied with the provisions of Section 6.13 (without regard to the extent time limits otherwise constituting an Investment permitted by Section 7.02set forth therein) prior to or at the time of consummation of such transaction;
(ib) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Subsidiary that is a Guarantor, then either (i) such Disposition must constitute an Investment permitted by Section 7.02(d) or (ii) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each another Subsidiary that is a Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation Material Subsidiary and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrowerand, if applicable, its Domestic Subsidiaries) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements provisions of Section 6.11 6.13 (without regard to the extent required pursuant time limits otherwise set forth therein) prior to or at the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose time of which is to effect a Disposition permitted pursuant to Section 7.05consummation of such Disposition; and
(gc) the Borrower and its Subsidiaries may enter into such mergers, consolidations, amalgamations and similar transactions as are reasonably necessary to consummate a purchase or other acquisition permitted by, and made in accordance with the terms of, Section 7.02(g); provided that if in any Restricted such transaction a Guarantor will be merged with or into any other Person, such Person shall be a Material Subsidiary may Dispose and such Person (and, if applicable, its Domestic Subsidiaries) shall have complied with the provisions of all or substantially all of its assets Section 6.13 (upon voluntary liquidation or otherwise) without regard to the extent that time limits otherwise set forth therein) prior to or at the time of consummation of such Disposition (or series of related Dispositions) is not prohibited under Section 7.05transaction.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Memc Electronic Materials Inc)
Fundamental Changes. The Borrower shall notEnter into any merger, nor shall it permit consolidation or ------------------- amalgamation, or liquidation, winding-up or dissolution (or suffer any Restricted Subsidiary toliquidation, directly winding-up or indirectly, merge, dissolve, liquidate, consolidate with or into another Persondissolution), or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned property or hereafter acquired) to or in favor of any Personbusiness, except that:
(a) any Restricted Subsidiary of the Borrower may merge, amalgamate be merged or consolidate consolidated with (i) or into or liquidated into the Borrower (including a merger, the purpose of which is to reorganize provided that the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower -------- shall be the continuing or surviving Person, (ycorporation) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary Guarantor (provided that is not a Loan Party and (ii) any Restricted the Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in be the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection -------- continuing or priority of the Liens granted under the Collateral Documentssurviving corporation);
(cb) any Restricted Subsidiary of the Borrower may Dispose of all any or substantially all of its assets (i) to the Borrower or any Subsidiary Guarantor (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) pursuant to the extent constituting an Investmenta Disposition permitted by Section 7.5;
(c) any Investment expressly permitted by Section 7.8 may be structured as a merger, such Investment must be a permitted Investment in consolidation or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyamalgamation;
(d) so long as provided that no Default or Event of Default exists shall result -------- therefrom, any Excluded Foreign Subsidiary may be merged with or into any other Subsidiary of the Borrower; provided, however, that the survivor of -------- ------- such merger shall become a Loan Party;
(e) the Borrower may merge with an Affiliate incorporated solely for the purpose of incorporating the Borrower in another jurisdiction to realize tax or other benefits, provided that (i) no Default or Event of -------- Default shall have occurred and be continuing or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any entity shall execute and deliver such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower assumption agreements and other documents and instruments as shall be an reasonably requested by the Administrative Agent to cause such entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume to become responsible for all the obligations and liabilities of the Borrower under this Agreement and the other Loan Documents and Intercompany Loan Documents, (iii) all actions reasonably requested by the Administrative Agent to continue without any adverse impact to the Lenders the perfected Liens on the Mortgaged Properties and/or any other Collateral created by the Security Documents or the Intercompany Mortgage shall have been completed to the satisfaction of the Administrative Agent and (iv) there shall have been delivered to the Administrative Agent such legal opinions and other documents with respect to the forego- ing, including board of directors' resolutions, charters and by-laws, as the Administrative Agent shall reasonably request, each of which the Borrower is a party pursuant to a supplement hereto or thereto shall be in form and substance reasonably satisfactory to the Administrative Agent and Agent; provided that in connection with the Borrowerforegoing, (C) each Guarantor, unless it is the other party to such merger appropriate Loan -------- Parties shall take all actions necessary or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Administrative Agent to maintain the perfection or perfect, as the case may be, protect and preserve the Liens on the Mortgaged Properties and/or any other Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate pursuant to the Security Documents or the Intercompany Mortgage and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document otherwise comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements provisions of Section 6.11 6.10 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;applicable; and
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidationsubject to Section 7.5(f), the purpose of Borrower may liquidate or sell any Subsidiary which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to in the extent that such Disposition (or series of related Dispositions) Borrower's reasonable judgment is not prohibited under profitable; provided that the Net Cash Proceeds received therefrom shall -------- be applied as set forth in Section 7.052.9(b).
Appears in 1 contract
Sources: Credit Agreement (American Pharmaceutical Partners Inc /Ca/)
Fundamental Changes. The Borrower shall notMerge, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeamalgamate, dissolve, liquidate, wind-up or consolidate (or suffer any liquidation or dissolution) 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 (including Equity Interests in Subsidiaries) (whether now owned or hereafter acquired) to or in favor of any Person, except thatPerson unless:
(a) any Restricted a Subsidiary may merge, amalgamate or consolidate with (i) of the Borrower (including a mergermerges, the purpose of which is to reorganize amalgamates or consolidates with the Borrower into a new jurisdiction)or any Subsidiary of the Borrower; provided that (wi) no Event of Default exists or would result therefromif the Borrower is party to such transaction, (x) the Borrower shall be the continuing or surviving Personentity, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted subject to clause (i), if a Principal Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that is party to such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal formtransaction, a Restricted Principal Subsidiary that is a Guarantor will remain Domestic Subsidiary shall be the surviving entity,
(b) a Guarantor and such transaction shall not have an adverse effect on the perfection or priority Subsidiary of the Liens granted under Borrower liquidates or dissolves into, or makes an asset disposition to, the Collateral DocumentsBorrower or any Subsidiary of the Borrower; provided that (i) if the Borrower is party to such transaction, the Borrower shall be the entity into which assets are transferred, and (ii) subject to clause (i);, if a Principal Subsidiary is party to such transaction, a Principal Subsidiary that is a Domestic Subsidiary shall be the entity into which assets are transferred in,
(c) any Restricted Subsidiary may Dispose the merger, amalgamation or consolidation of all or substantially all of its assets (upon voluntary liquidation or otherwise) to WMECO with the Borrower, with the Borrower being the surviving entity, shall be permitted,
(d) all corporate and regulatory approvals therefor have been received,
(e) no Default or Event of Default would exist hereunder after giving effect to another Restricted Subsidiary; provided that if such transaction, and
(f) the transferor in such a transaction is a Guarantor, then senior unsecured debt ratings of S&P and ▇▇▇▇▇’▇ applicable to (i) the transferee must be a Guarantor or the Borrower or Borrower, (ii) to the extent constituting an Investmentapplicable, such Investment must be Principal Subsidiary that is the surviving entity in a transaction permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
under clause (da) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”)above, (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwiseiii) to the extent that applicable, the entity to which assets are transferred, in such Disposition a transaction permitted under clause (b) and (iv) to the extent applicable, the Principal Subsidiary disposing of assets to a Person other than the Borrower or series any of related Dispositionsits Subsidiaries in a transaction permitted under clause (b) is not prohibited under above, in each case after giving effect to such transaction, shall be at least BBB- and Baa3. Notwithstanding the foregoing, any disposition of assets permitted by the foregoing provisions of this Section 7.058.02 to a Person other than the Borrower and its Subsidiaries may be consummated by way of merger, amalgamation or consolidation.
Appears in 1 contract
Sources: Credit Agreement (Public Service Co of New Hampshire)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly merge into or indirectly, merge, dissolve, liquidate, 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 wind up, liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (ai) any Person may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Person (other than the Borrower) may merge into any Restricted Subsidiary in a transaction in which the surviving entity is, or upon the effectiveness of such merger will become, a Restricted Subsidiary and (if any party to such merger is a Subsidiary Loan Party) is, or upon the effectiveness of such merger will become, a Subsidiary Loan Party, unless such merger is otherwise permitted under Section 6.05 as an investment in the surviving Subsidiary or such surviving Subsidiary becomes a Subsidiary Loan Party in accordance with Section 5.14), (iii) any Asset Sale permitted under Section 6.04, any other sale, lease transfer or other disposition not prohibited hereunder or any Investment permitted under Section 6.02 may be structured as a merger or consolidation, (iv) any Restricted Subsidiary may mergewind up, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if (A) the Borrower determines in good faith that such action winding up, liquidation or dissolution is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders in and (B) with respect to any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any winding up, liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Subsidiary Loan Party, and all distributions in the case respect of any change in legal formEquity Interest of such Subsidiary Loan Party resulting from such winding up, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) dissolution shall be made to the Borrower or other Subsidiary Loan Parties, (v) any Subsidiary may convert to another Restricted Subsidiary; provided that if the transferor in such a transaction is different type of entity (including pursuant to a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(dmerger) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent receives prior notice thereof and the Borrower, (C) each Guarantor, unless it is the other party to such merger surviving or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other continuing Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or Requirements, (y) the transaction shall otherwise constitute a permitted Investment;
(fvi) any Restricted Non-Material Subsidiary may effect wind up, liquidate or dissolve and (vii) any Subsidiary may be party to a merger, dissolution, liquidation or consolidation, merger the sole purpose of which is to effect reincorporate or reorganize such Person in another jurisdiction in the United States so long as the Administrative Agent receives prior written notice thereof and the surviving or continuing Person shall have complied with the Collateral and Guarantee Requirements; provided that any such merger involving a Disposition permitted pursuant to Section 7.05; and
(g) any Person that is not a Wholly Owned Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) the Borrower immediately prior to the extent that such Disposition (or series of related Dispositions) is merger shall not prohibited under Section 7.05be permitted unless also permitted by Sections 6.02, 6.04, 6.08 and 6.14, as applicable.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, Person and (y) such transaction merger does not result in the Borrower ceasing to be organized incorporated under the laws Laws of the United States, any State state thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Columbia, or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided further that when such transaction involves any Restricted Subsidiary that is a Loan PartySubsidiary Guarantor is merging with another Restricted Subsidiary, a Loan Party Subsidiary Guarantor shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party Subsidiary Guarantor may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Subsidiary Guarantor (provided that (A) the Borrower shall own, directly or indirectly, Equity Interests representing a percentage of the aggregate ordinary voting power and aggregate equity value represented by the issued and outstanding Equity Interests in such surviving Subsidiary that is equal to or greater than the percentage of the aggregate ordinary voting power and the aggregate equity value represented by the issued and outstanding Equity Interests that were owned immediately prior to such merger or consolidation, directly or indirectly, by the Borrower in such other merged or consolidated Restricted Subsidiary, and (B) if any person other than the Borrower or a Subsidiary Guarantor receives any consideration in connection with such transaction, such transaction shall comply with the provisions of Section 7.02) and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form (provided that (A) such transaction shall not reduce the Borrower’s direct or indirect share of the aggregate ordinary voting power and aggregate equity value in such Restricted Subsidiary, (B) if such Restricted Subsidiary is a Subsidiary Guarantor it shall continue to be a Subsidiary Guarantor, (C) the Borrower determines or Restricted Subsidiary shall comply with its obligations under Sections 6.11 and 6.13 in good faith that connection with such action is transaction and (D) such transaction shall have been undertaken for a valid purpose (which includes the reduction of taxes for direct or indirect owners of Equity Interests in the best interest of the Borrower Borrower) and the Restricted Subsidiaries and is shall not be disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documentsmanner);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorSubsidiary Guarantor or the Borrower, then (i) the transferee must either be a Guarantor or the Borrower or a Subsidiary Guarantor or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower any Restricted Subsidiary may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or 6.11;
(ye) the transaction shall otherwise constitute a permitted Investment;Borrower and the Restricted Subsidiaries may consummate the Restructuring Transactions in accordance with the terms of the Plan of Reorganization; and
(f) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
provided that in the case of clauses (ga), (b) any Restricted and (c) above, (x) the security interest of the Administrative Agent in the property of such person formed by such merger or consolidation (or such Person resulting from such change in corporate form) shall be no less favorable than the security interest of the Administrative Agent in the property of the Borrower or Subsidiary may Dispose prior to such merger or consolidation (or change in corporate form) and (y) except in the case of all clause (a)(i) above, the Guarantee by such person formed by such merger or substantially all consolidation (or such Person resulting from such change in corporate form) of its assets (upon voluntary liquidation or otherwise) the Obligations shall be no less favorable to the extent that Lenders than the Guarantees of the Obligations of the Subsidiary prior to such Disposition merger or consolidation (or series of related Dispositions) is not prohibited under Section 7.05change in corporate form), in each case, as reasonably determined by the Administrative Agent.
Appears in 1 contract
Fundamental Changes. The Borrower shall notEnter into any merger, nor shall it permit any Restricted Subsidiary toconsolidation or amalgamation, directly or indirectly, merge, dissolve, liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation or dissolution), or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned property or hereafter acquired) to or in favor of any Personbusiness, except that:
(a) any Restricted Subsidiary of the Borrower may merge, amalgamate be merged or consolidate consolidated with (i) or into the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, corporation) or with or into any Subsidiary Guarantor (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves a Loan Party, a Loan Party Subsidiary Guarantor shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02corporation);
(ib) any Restricted Subsidiary of the Borrower that is not a Loan Party Subsidiary Guarantor may merge, amalgamate be merged or consolidate consolidated with or into the Borrower, any Subsidiary Guarantor or any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);Borrower.
(c) any Restricted Subsidiary of the Borrower that is not a Subsidiary Guarantor may Dispose of all any or substantially all of its assets to the Borrower, any Subsidiary Guarantor or any other Subsidiary of the Borrower.
(d) any Subsidiary Guarantor may Dispose, to any Subsidiary of the Borrower which is not a Subsidiary Guarantor, property having an aggregate fair market value that does not exceed (i) $25,000,000 during the period from the Funding Date to and including the first anniversary of the Funding Date and (ii) $12,000,00 during each year of this Agreement following the first anniversary of the Funding Date, less, in each such year, the aggregate fair market value of all Investments made during the corresponding year in which such Dispositions are made pursuant to Section 7.7(l);
(e) any Subsidiary of the Borrower may Dispose of any or all of its assets (i) to the Borrower or any Subsidiary Guarantor (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have Disposition permitted by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this AgreementSection 7.5; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;and
(f) any Restricted Subsidiary Investment expressly permitted by Section 7.7 may effect be structured as a merger, dissolution, liquidation consolidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05amalgamation.
Appears in 1 contract
Sources: Credit Agreement (Kadant Inc)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, 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 PersonDivision, except that:
(a) Holdings or any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that that:
(w) no Event of Default exists or would result therefrom, (xi) the Borrower shall be the continuing or surviving Person, ;
(yii) such transaction merger, amalgamation or consolidation does not result in the Borrower ceasing to be organized under the laws Laws of the United States, any State state thereof or the District of Columbia and Columbia; and
(ziii) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of a merger, amalgamation or consolidation of Holdings with and into the Borrower, (A) no Event of Default shall exist at such time or after giving effect to such merger, amalgamation or consolidation, (B) Holdings shall have no direct Subsidiaries at the time of such merger, amalgamation or consolidation other than the Borrower, (C) after giving effect to such merger, amalgamation or consolidation, the direct parent of the Borrower shall expressly assume all the obligations of Holdings under this clause (ii), that when such transaction involves Agreement and the other Loan Documents to which Holdings is a Loan Party, party pursuant to a Loan Party shall be the continuing supplement hereto or surviving Person except thereto in form reasonably satisfactory to the extent otherwise constituting an Investment permitted by Section 7.02Administrative Agent and (D) such direct parent of the Borrower shall concurrently become a Guarantor and pledge 100% of the Equity Interest of the Borrower to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent;
(ib) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary or liquidate or dissolve; provided, that if such Restricted Subsidiary is not a Loan Party, the surviving Person (or the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be a Loan Party unless the transfer of the assets and operations of such Loan Party to a Non-Loan Party would have been permitted as an Investment under Section 7.02 (iiit being understood that any such merger, consolidation, amalgamation, dissolution or liquidation shall be deemed to have used the capacity under the relevant clause of Section 7.02);
(c) any merger or amalgamation the purpose of which is to reincorporate or reorganize a Restricted Subsidiary in another jurisdiction shall be permitted;
(d) any Restricted Subsidiary may liquidate or dissolve or change its legal form if form; provided (i) no Event of Default shall result therefrom and (ii) the Borrower determines in good faith that surviving Person (or the Person who receives the assets of such action is in the best interest of the Borrower and the dissolving or liquidated Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, be a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)Subsidiary;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(de) so long as no Event of Default exists or would result therefrom, the Borrower may merge merge, amalgamate or consolidate with any other Person; provided that that:
(i) the Borrower shall be the continuing or surviving corporation or corporation; or
(ii) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower (any such Person, the “Successor Borrower”), ;
(A) the Successor Borrower shall be an entity organized or existing under the Laws laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, Columbia;
(B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, Agent;
(C) each Guarantor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Borrower’s obligations under the Loan Documents, this Agreement;
(D) each GuarantorLoan Party, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents or the Canadian Security Agreement, as applicable, confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under this Agreement and the Loan Documents, direct parent of such Person shall pledge 100% of the Equity Interests of such Person to the Administrative Agent as Collateral to secure the Obligations; and
(E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion 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 (or waived)satisfied, the Successor Borrower ▇▇▇▇▇▇▇▇ will succeed to, and be substituted for, the Borrower under this Agreement;
(f) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment, Acquisition Transaction or other transaction not prohibited by the Loan Documents (other than any transaction pursuant to Section 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 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 7.10(b), become a Guarantor and pledge 100% of the Equity Interests of the Borrower to the Collateral Agent; and
(iii) if a Division is conducted by a Loan Party other than the Borrower or Holdings, then each surviving or resulting Person of such Division shall also be a Loan Party unless and to the extent any such surviving or resulting Loan Party is the subject of a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)) or otherwise would constitute an Excluded Subsidiary; provided further that such surviving or resulting Person not becoming a Loan Party and the assets and property of such surviving or resulting Person not becoming Collateral shall, in each case, be treated as an Investment and shall be permitted under this Section 7.04(g)(iii) solely to the extent permitted under Section 7.02;
(h) as long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)); and
(i) the Exchange Transactions may be consummated. Notwithstanding anything herein to the contrary, in the event of any merger, dissolution, liquidation, consolidation, amalgamation or Division of any Loan Party or a Restricted Subsidiary effected in accordance with this Section 7.04, the Borrower agrees shall or shall cause, with respect to provide any documentation and other information about each surviving or continuing Restricted Subsidiary (or new direct Parent Entity) (a) promptly deliver or cause to be delivered to the Successor Borrower as shall have been reasonably requested in writing Administrative Agent for further distribution by the Administrative Agent, Agent to each Lender (i) such information and documentation reasonably requested by the Collateral Administrative Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
PATRIOT Act and (eii) a Beneficial Ownership Certification and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any Restricted Subsidiary and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent or Collateral Agent may merge, amalgamate or consolidate with any other Person (other than the Borrower) reasonably request in order to effect an Investment permitted pursuant perfect or continue the perfection of the Liens granted or purported to Section 7.02; provided that either (x) be granted by the continuing or surviving Person shall be a Restricted Subsidiary, which together Collateral Documents in accordance with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.as promptly as practicable
Appears in 1 contract
Sources: Abl Revolving Credit Agreement (Advantage Solutions Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, 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 PersonPerson (including, except in each case, pursuant to a Delaware LLC Division); provided that:
, notwithstanding the foregoing provisions of this Section 8.04 but subject to the terms of the Additional Guarantor Provisions and the Additional Collateral Requirements, (a) any Restricted Subsidiary the Company may merge, amalgamate merge or consolidate with (i) the Borrower (including a merger, the purpose any of which is to reorganize the Borrower into a new jurisdiction)its Restricted Subsidiaries; provided that (w) no Event of Default exists the Company shall be the continuing or would result therefromsurviving Person, (xb) any Domestic Loan Party other than the Company may merge or consolidate with any other Domestic Loan Party other than the Company, (c) any Foreign Subsidiary that is a Restricted Subsidiary which is not a corporation incorporated under the Laws of Canada or a province or territory thereof may be merged or consolidated with or into any Loan Party provided that such Loan Party shall be the continuing or surviving Person, (d) any Foreign Subsidiary that is a Restricted Subsidiary which is not a corporation incorporated under the Laws of Canada or a province or territory thereof may be merged or consolidated with or into any other Foreign Subsidiary that is a Restricted Subsidiary; provided that if any such Person is a Designated Borrower, a Designated Borrower shall be the continuing or surviving Person, (ye) such transaction does not result in the Borrower ceasing to be organized under the laws any Restricted Subsidiary of the United StatesCompany may merge with any Person that is not a Loan Party in connection with a Disposition permitted under Section 8.05 or a Permitted Acquisition; provided that, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when if such transaction involves a Loan Partyany Designated Borrower, a Loan Party such Designated Borrower, as applicable, shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
Person, (if) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that Company (other than a transaction constituting a permitted Investment under Section 7.02 any Designated Borrower) may dissolve, liquidate or involving an Excluded Subsidiary) in the case of wind up its affairs at any time; provided that such dissolution, liquidation or dissolution of winding up, as applicable, could not reasonably be expected to have a GuarantorMaterial Adverse Effect, such Guarantor shall transfer its assets to a Loan Party, and in the case of (g) any change in legal form, a Restricted Foreign Subsidiary that is a Guarantor will remain Restricted Subsidiary (except a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted Designated Borrower) which is a corporation incorporated under the Collateral Documents);
Laws of Canada or a province or territory thereof may amalgamate with another Loan Party; provided that the corporation resulting from such amalgamation assumes by operation of law all obligations of such Loan Party and provides confirmation of such assumption of obligations as is reasonably required by the Administrative Agent, and (ch) any Foreign Subsidiary that is a Restricted Subsidiary which is a corporation incorporated under the Laws of Canada or a province or territory thereof may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to amalgamate with another Foreign Subsidiary that is a Restricted Subsidiary; provided that if the transferor in any such a transaction Person is a GuarantorDesignated Borrower, then (i) the transferee must be a Guarantor or the corporation resulting from such amalgamation assumes by operation of law all obligations of such Designated Borrower or (ii) and provides confirmation of such assumption to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which obligations as is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing required by the Administrative Agent. Notwithstanding the foregoing, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) Company and/or any Restricted Subsidiary may effect transactions not otherwise permitted under this Section 8.04 as part of a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05Permitted Restructuring.
Appears in 1 contract
Sources: Incremental Amendment to Second Amended and Restated Credit Agreement (Fti Consulting, Inc)
Fundamental Changes. The Borrower shall not, nor shall it the Borrower permit any Restricted Subsidiary to, directly consolidate, amalgamate or indirectly, merge, dissolve, liquidate, consolidate merge with or into or wind up into another Person, or Dispose liquidate or dissolve or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), including by an allocation of assets among newly divided 152 limited liability companies pursuant to a “plan of division” under the Delaware Limited Liability Company Act, except that:
(a) Subject to Section 3.03(a) of the Security Agreement, any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, amalgamation or consolidation, the purpose of which is to reorganize or continue the Borrower into a new jurisdiction); provided that that:
(w) no Event of Default exists or would result therefrom, (xa) the Borrower shall be the continuing or surviving Person, and
(yb) such transaction merger, amalgamation or consolidation does not result in the Borrower ceasing to be formed, incorporated or organized under the laws Laws of Luxembourg (unless formed, incorporated or organized in the United States, any State state thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (iiColumbia), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;.
(i) any Restricted Subsidiary that is not a Loan Party may mergeamalgamate, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary that is a Loan Party may merge or consolidate with a Subsidiary that is not a Loan Party so long as the resulting Investment in such Non-Loan Party Subsidiary, if newly made, would otherwise constitute a Permitted Investment;
(b) any Subsidiary may amalgamate, merge or consolidate with or into any other Subsidiary that is a Loan Party; provided that a Loan Party shall be the continuing or surviving Person or the resulting Investment in the continuing or surviving Person, if newly made, would otherwise constitute a Permitted Investment;
(c) any merger, amalgamation or consolidation the sole purpose of which is to reincorporate or reorganize or continue a Loan Party in another jurisdiction in the United States will be permitted, and
(d) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest interests of the Borrower and the Restricted its Subsidiaries and is not materially disadvantageous to the Lenders in any material respect (it being understood Lenders; provided that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation this Section 7.03(2), (x) no Event of Default shall have occurred and be continuing or dissolution of a Guarantorresult therefrom or, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal forma Permitted Acquisition or similar committed investment, a Restricted no Event of Default under Section 8.01(1) or Section 8.01(6) shall have occurred and be continuing or result therefrom and (y) the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor will remain shall be a Guarantor and Loan Party or such transaction disposition shall not have an adverse effect on the perfection otherwise be permitted under Section 7.05 or priority of the Liens granted under the Collateral Documents)would otherwise constitute a Permitted Investment;
(c) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (ix) the transferee must be a Guarantor or the Borrower Loan Party or (iiy) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyParty;
(d) so long as no Event of Default exists shall have occurred and be continuing or would result therefrom or, in the case of a Permitted Acquisition or similar committed investment, no Event of Default under Section 8.01(1) or 153 Section 8.01(6) shall have occurred and be continuing or result therefrom, the Borrower may amalgamate, merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that that:
(ia) the Borrower shall be the continuing or surviving corporation or (iib) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the a “Successor Borrower”), ): the Successor Borrower will:
(A) the Successor Borrower shall be an entity formed, incorporated, organized or existing under the Laws of Luxembourg or the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, Columbia;
(B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, ; and
(C) deliver to the Administrative Agent (I) an Officer’s Certificate stating that such merger, amalgamation or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) satisfies the requirements under this Section 7.03(4) and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions (similar in scope and substance to the opinions delivered to the Administrative Agent on the Closing Date) to the extent reasonably requested by the Administrative Agent;
(ii) substantially contemporaneously with such transaction (or at a later date as may be agreed by the Administrative Agent),
(A) each Guarantor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have confirmed that will by a supplement to the Guaranty (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guarantee shall apply to Guaranty of the Obligations (including the Successor Borrower’s obligations under the Loan Documents, this Agreement),
(DB) each GuarantorLoan Party, unless it is the other party to such merger merger, amalgamation or consolidation, shall have will, by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that (or in another form reasonably satisfactory to the collateral granted by it to secure Administrative Agent), confirm its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documentsgrant or pledge thereunder, and
(EC) if reasonably requested by the Collateral Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger merger, amalgamation or consolidation, shall have will, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed Agent and the Borrower), confirm that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and this Agreement;
(Fiii) the Borrower shall have delivered to [reserved]; and
(iv) the Administrative Agent an officer’s certificate shall have received at least three (3) Business Days prior to such transaction all documentation and an opinionother information in 154 respect of the 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, further that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) [reserved];
(f) any Restricted Subsidiary may mergeamalgamate, amalgamate merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person (other than the Borrower) in order to effect an a Permitted Investment or other investment permitted pursuant to Section 7.027.05 so long as no Event of Default shall have occurred and be continuing or result therefrom or, in the case of a Permitted Acquisition or similar committed investment, no Event of Default under Section 8.01(1) or Section 8.01(6) shall have occurred and be continuing or result therefrom; provided further, that either (x) the continuing or surviving Person shall will be a Restricted SubsidiaryLoan Party, in each case, which together with each of its Restricted Subsidiaries, shall will have complied with the applicable requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment6.11;
(fg) any Restricted Subsidiary may effect a merger, amalgamation, dissolution, liquidation liquidation, consolidation or consolidationdisposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.057.04 (other than under clause (c) of the definition of “Asset Sale”) will be permitted;
(h) subject to Section 3.03(a) of the Security Agreement, the Borrower may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name;
(i) the Loan Parties and their respective Subsidiaries may consummate the Transactions; and
(gj) the commencement of any Restricted proceedings against any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) under Debtor Relief Laws to the extent that such Disposition proceedings do not constitute an Event of Default under Section 8.01(6) will be permitted. Notwithstanding anything in this Section 7.03 and subject to the Collateral and Guarantee Requirement, in the event a Loan Party changes its (i) name as it appears in official filings in its jurisdiction of incorporation, organization or formation or (ii) chief place of business or chief executive office, each Loan Party shall within sixty (60) days (or series such longer time period as may be agreed by the Collateral Agent) after any such change, give the Collateral Agent written notice of related Dispositions) is not prohibited under Section 7.05such change.
Appears in 1 contract
Fundamental Changes. The Other than (i) a merger of the Borrower shall notor a Domestic Subsidiary to effectuate a reincorporation or statutory conversion in another state of the United States or (ii) a statutory conversion in any state of the United States, nor shall it permit any Restricted Subsidiary to, directly or indirectlyin either case upon at least 30 days' prior written notice to the Administrative Agent, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate merge with or consolidate with dissolve into (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves a Loan Partyany Guarantor is merging with or dissolving into another Subsidiary, a Loan Party the Guarantor shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(ib) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary, and may thereafter liquidate or dissolve if applicable; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or a Guarantor;
(iic) the Borrower or any of its Subsidiaries may merge with another Person to effectuate an Acquisition permitted by Section 7.02(h); provided that the extent constituting an InvestmentBorrower or the applicable Subsidiary is the acquiring or surviving entity (or, with respect to any merger by a Subsidiary of the Borrower, the surviving entity becomes a Subsidiary in the transaction); and provided further that if such Investment must be merging Subsidiary is a permitted Investment in or Indebtedness of Guarantor, the surviving entity becomes a Restricted Subsidiary which is not a Loan Party in accordance Guarantor and complies with Sections 7.02 and 7.03, respectivelythe requirements for new Guarantors under Section 6.13;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially of the Equity Interests of any Subsidiary in accordance with Section 7.05(n); and
(e) the Borrower and its Subsidiaries may Dispose of any and all properties and assets permitted to be Disposed of its assets (upon voluntary liquidation or otherwise) pursuant to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.057.05(q).
Appears in 1 contract
Sources: Credit Agreement (Helix Energy Solutions Group Inc)
Fundamental Changes. (a) The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly will not merge into or indirectly, merge, dissolve, liquidate, 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 through a Subsidiary) (in one transaction or in a series of related transactions) all or substantially all of the assets of the Borrower and its assets (whether now owned Subsidiaries on a consolidated basis to any Person other than the Borrower or hereafter acquired) to a Subsidiary, or in favor of any Personliquidate or dissolve, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) if at the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) time thereof and immediately after giving effect thereto no Event of Default exists or would result therefromshall have occurred and be continuing, (1) any Person may merge into the Borrower in a transaction in which (x) the Borrower shall be is the continuing surviving corporation or surviving Person, (y) such transaction does not result in the Borrower ceasing to be surviving Person (1) is a corporation organized and validly existing under the laws of the United States, States of America or any State thereof or the District of Columbia Columbia, (2) has long-term senior unsecured, unguaranteed debt securities rated no lower than Baa2 by Moody’s and BBB by S&P, (z3) such transaction does not have an adverse effect in any material respect on the perfection or priority expressly assumes all of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the ’s obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C4) each Guarantor, unless it is the other party to provides such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
Act and the Beneficial Ownership Regulation, as is reasonably requested in writing by the Administrative Agent and such other approvals, opinions or documents consistent with the requirements in Section 4.01 as the Administrative Agent (ein consultation with the Lenders) may reasonably request and (ii) the Borrower may consummate a Division if (v) the Division Successor which holds the rights and liabilities under this Agreement (“Division Successor Borrower”) is a corporation organized and validly existing under the laws of the United States of America or any Restricted Subsidiary may mergeState thereof or the District of Columbia, amalgamate or consolidate with any other Person (other w) the Division Successor Borrower has long-term senior unsecured, unguaranteed debt securities rated no lower than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either Baa2 by Moody’s and BBB by S&P, (x) the continuing Division will not result in a sale, transfer, lease or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose other disposition of all or substantially all of the assets held the Borrower and its assets Subsidiaries on a consolidated basis immediately prior to giving effect to such Division, (upon voluntary liquidation y) the Division Successor Borrower expressly assumes all of the Borrower’s obligations under this Agreement and (z) the Division Successor Borrower provides such information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, as is reasonably requested in writing by the Administrative Agent and such other approvals, opinions or otherwisedocuments consistent with the requirements in Section 4.01 as the Administrative Agent (in consultation with the Lenders) may reasonably request.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the extent type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related, incidental or ancillary thereto or that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05a reasonable extension thereof.
Appears in 1 contract
Fundamental Changes. (a) The Borrower shall will not, nor shall it and will not permit any Restricted Subsidiary to, directly merge into or indirectly, merge, dissolve, liquidate, 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 its assets (in each case, whether now owned or hereafter acquired) to or in favor all or substantially all of the stock of any Personof its Subsidiaries (in each case, except that:
(awhether now owned or hereafter acquired) any Restricted Subsidiary may mergeor liquidate or dissolve; provided, amalgamate that if at --------- the time thereof and immediately after giving effect thereto, no Default or consolidate with Event of Default shall have occurred and be continuing (i) the Borrower (including or any Subsidiary may merge with a merger, the purpose of which is to reorganize Person if the Borrower (or such Subsidiary if the Borrower is not a party to such merger) is the surviving Person, and any Subsidiary may merge into a new jurisdiction); provided another Subsidiary, provided, that (w) no Event of Default exists or would result therefrom, (x) the Borrower if either party --------- to such a merger between Subsidiaries is a Guarantor, a Guarantor shall be the continuing or surviving Person, and (y) any such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves merger involving a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may mergewholly-owned Subsidiary immediately prior to such merger shall not be permitted hereunder unless also permitted by Section 7.4, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (including by way of liquidation) to the Borrower or to a Guarantor, provided, --------- that if such selling Subsidiary is a Mortgagor, after giving effect to such sale, transfer, lease or other disposition, the Mortgage and the Lien created thereunder in favor of the Administrative Agent for the benefit of the Lenders in the related Mortgaged Property owned by the transferee of such Mortgaged Property shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such sale, transfer, lease or other disposition) and such transferee shall execute an assumption agreement in form and substance satisfactory to the Administrative Agent expressly assuming the obligations and liabilities of such selling Subsidiary under the Mortgage and other applicable Loan Documents, and (iii) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders, provided, that if such liquidated or dissolved --------- Subsidiary is a Mortgagor, after giving effect to such liquidation or dissolution, the Person succeeding to title to the Mortgaged Property is a Guarantor and the Mortgage and the Lien created thereunder in favor of the Administrative Agent for the benefit of the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, related Mortgaged Property owned by such Guarantor shall transfer its assets remain in full force and effect and perfected (to a Loan Party, and at least the same extent as in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor effect immediately prior to such liquidation or dissolution) and such transaction Guarantor shall not have execute an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto assumption agreement in form reasonably and substance satisfactory to the Administrative Agent expressly assuming the obligations and the Borrower, (C) each Guarantor, unless it is the other party to liabilities of such merger liquidated or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations dissolved Subsidiary under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement Mortgage and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its ; and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if any merger or any sale, transfer or other disposition -------- -------- of assets described in clause (i) or (ii) above involving DGI shall be limited to a merger with the foregoing are satisfied Borrower where the Borrower is the surviving Person, or a sale, transfer or other disposition of assets from DGI to the Borrower, as the case may be.
(or waived), the Successor b) The Borrower will succeed not, and will not permit any of its Subsidiaries to, engage in any business other than businesses of the type conducted by the Borrower and be substituted forits Subsidiaries on the date hereof and businesses reasonably related thereto. Without limiting the foregoing, the Borrower under this Agreement; provided further that shall not permit DGI to engage in any business or activities other than (i) funding and collecting the DGI Loans in accordance with their respective terms, and (ii) purchasing any real and/or personal property having an aggregate purchase price not to exceed $5,000,000, and leasing such property on a net lease basis to the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Dollar General Corp)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, Person and (y) such transaction merger does not result in the Borrower ceasing to be organized incorporated under the laws Laws of the United States, any State state thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Columbia, or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Restricted Subsidiary that is a Loan PartyParty is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest interests of the Borrower and the Restricted its Subsidiaries and is not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed in writing in form reasonably satisfactory to the Administrative Agent that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documentsthis Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement confirmed in writing in form reasonably satisfactory to the Security Agreement and other applicable Collateral Documents confirmed Administrative Agent that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documentsthis Agreement, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have have, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Administrative Agent) ), confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documentsthis Agreement, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, amalgamate or consolidate merge with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment6.11;
(f) so long as no Default exists or would result therefrom and no material assets have been transferred to such Subsidiaries from the Borrower or any Restricted Subsidiary thereof from the Closing Date to the date of such dissolution or liquidation, the Subsidiaries listed on Schedule 7.04(f) may effect be dissolved or liquidated; and
(g) a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary , may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05be effected.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) so long as no Event of Default exists or would result therefrom:
(a) upon notice to the Administrative Agent, Auna Colombia and the Target may consummate the Permitted Merger; provided, that (xi) such merger is consummated pursuant to documentation not objected by the Administrative Agent and the Lenders (it being understood that if within 15 Business Days after receiving notice hereto from the Borrower the Administrative Agent did not raise any objection to the Permitted Merger documentation it will be deemed it has consented to it) and (ii) the Administrative Agent shall have received documentation (including any amendment to the Colombian Stock Pledge Agreement or any additional stock pledge agreement duly executed by the shareholder of the Borrower and the Colombian Collateral Agent) in substance and form satisfactory to the Administrative Agent and the Lenders evidencing that immediately prior and after giving effect to the Permitted Merger, the Collateral Agent shall have, for the ratable benefit of the Lenders and any Hedge Providers, a legal, valid and enforceable fully perfected first priority Lien in all of the Capital Stock of the Borrower, enforceable against the pledgors thereof and third parties, subject to no other Liens;
(b) any Subsidiary of the Borrower may merge with (i) the Borrower; provided that the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any one or more other Restricted SubsidiariesSubsidiaries of the Borrower; provided, in the case of this clause (ii), that when such transaction involves a Loan Partyany wholly-owned Subsidiary of the Borrower is merging with another Subsidiary, a Loan Party the wholly-owned Subsidiary shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);Person; and
(c) any Restricted Subsidiary of the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantorwholly-owned Subsidiary of the Borrower, then (i) the transferee must either be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted wholly-owned Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Sources: Credit Agreement (Auna S.A.A.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, 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 Personother Person (other than as part of the Transactions), except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Lead Borrower (including a merger, the purpose of which is to reorganize the Lead Borrower into a new U.S. jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Lead Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Person or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) any Restricted Subsidiary (other than the Lead Borrower) may liquidate or dissolve or and (iii) any Subsidiary of the Parent may change its legal form if if, with respect to clauses (ii) and (iii), the Lead Borrower determines in good faith that such action is in the best interest of the Borrower Parent and the Restricted its Subsidiaries and is not materially disadvantageous to the Lenders (in any material respect their capacity as such) (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Lead Borrower or to any another Restricted SubsidiarySubsidiary of 140 the Parent; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the a Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively;
(d) so long as no Event of Default exists has occurred and is continuing or would result therefrom, the Lead Borrower may merge or consolidate with any other Person; provided that (i) the Lead Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Lead Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the Lead Borrower under this Agreement and the other Loan Documents to which the Lead Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerLead Borrower (including with respect to the satisfaction of customary USA Patriot Act and Beneficial Ownership Regulation requirements), (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral 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 Collateral AgentAdministrative Agent and the Lead Borrower) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (F) the Lead Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionand, if reasonably requested by the Administrative Agent, a customary 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 provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Lead Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary of the Parent may merge, amalgamate merge or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.027.02 (other than Section 7.02(e)); provided that either (xi) the continuing or surviving Person shall be a Restricted SubsidiarySubsidiary of the Parent, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 and Section 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement or Requirement, (yii) if a Loan Party is a party to such transaction, the transaction surviving Person shall otherwise constitute be a permitted InvestmentLoan Party and (iii) if the Lead Borrower is party to such transaction, the surviving party shall be the Lead Borrower;
(f) any the Borrower and the Restricted Subsidiary Subsidiaries may effect consummate the transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(g) a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect (i) a Disposition permitted pursuant to Section 7.05, (ii) a Permitted Tax Restructuring, (iii) corporate tax restructuring in connection with the Transactions, (iv) [reserved] or (v) an Investment pursuant to Section 7.02; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) provided that, in each case, if the Lead Borrower is party to such transaction, the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05surviving party shall be the Lead Borrower.
Appears in 1 contract
Sources: Credit Agreement (Redwire Corp)
Fundamental Changes. The (a) Allow any Borrower shall notto Consolidate, nor shall it permit any Restricted Subsidiary to, directly merge or indirectly, merge, dissolve, liquidate, consolidate amalgamate with or into another or wind up into (whether or not such Borrower is the surviving Person), or Dispose sell, assign, transfer, lease, convey or otherwise dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its properties or assets (whether now owned in one or hereafter acquired) more related transactions, to or in favor of any Person, except thatPerson unless:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) such Borrower is the Borrower (including a merger, surviving Person or the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing Person formed by or surviving Personany such consolidation, merger or amalgamation with a Person from the same country of domicile (yif other than such Borrower) or to which such transaction does not result in the Borrower ceasing to be sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the United States, any State thereof or state thereof, the District of Columbia and Columbia, or any territory thereof or Canada, or any province thereof, as applicable (z) such transaction does not have an adverse effect in any material respect on the perfection Borrower or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; providedsuch Person, in as the case of this clause (ii)may be, that when such transaction involves a Loan Party, a Loan Party shall be being herein called the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents“Successor Company”);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and Company (if other than such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (BBorrower) the Successor Borrower shall expressly assume assumes all the obligations of the such Borrower under this Agreement and the other each Loan Documents Document to which the such Borrower is a party pursuant to a supplement hereto or thereto in form joinder documentation reasonably satisfactory to Agent;
(iii) immediately after giving effect to such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transaction, as if such transaction had occurred at the Administrative Agent beginning of the applicable four-quarter period, either;
(A) the Successor Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Term LoanFixed Asset Fixed Charge Coverage Ratio test set forth in Section 10.2.2(a); or
(B) the Term LoanFixed Asset Fixed Charge Coverage Ratio for the Successor Company and its Restricted Subsidiaries would be equal to or greater than such ratio for Holdings and its Restricted Subsidiaries immediately prior to such transaction;
(v) if the Successor Company is other than such Borrower, (C) each GuarantorGuarantor with respect to such Borrower’s obligations, unless it is the other party to such merger or consolidationthe transactions described above, shall have confirmed that its Guarantee and grant of security shall apply to the Successor Borrowersuch Person’s obligations under the Loan Documents, ;
(Dvi) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the extent any assets of the Person which is merged, amalgamated or consolidated with or into the Successor Company are assets of the type which would constitute Collateral under the Security Documents, the Successor Company will take such action as may be reasonably requested by Agent to the extent necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required by Section 10.1.11 hereof or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Security Documents; and
(vii) the Collateral owned by or transferred to the Successor Company shall: (A) continue to constitute Collateral under this Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Security Documents, (EB) if reasonably requested by be subject to the Collateral Agent, each mortgagor Lien in favor of a Mortgaged Property, unless it is Agent for the other party to such merger or consolidation, shall have by an amendment to or restatement benefit of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan DocumentsSecured Parties, and (FC) the Borrower shall have delivered not be subject to the Administrative Agent an officer’s certificate and an opinion, each stating that any Lien other than Permitted Liens or Liens otherwise permitted hereunder. The Successor Company (if other than such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower Borrower) will succeed to, and be substituted for, the such Borrower under this Agreement; provided further that the Loan Documents, and such Borrower agrees to provide any documentation will automatically be released and other information about discharged from its Obligations. Notwithstanding the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agentforegoing clauses (iii) and (iv), the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(ea) any Restricted Subsidiary that is not a Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Borrower or any Restricted Subsidiary, (b) any Restricted Subsidiary that is a Guarantor may consolidate, amalgamate or merge with or into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to any Borrower, any Guarantor or any Restricted Subsidiary that becomes a Guarantor in connection with such consolidation, amalgamation, merger, sale, assignment, transfer, lease, conveyance or disposal and (c) any Borrower may merge, amalgamate or consolidate with any other Person (other than an Affiliate incorporated or organized in the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each same country of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral domicile and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, solely for the purpose of which reincorporating or reorganizing the Borrowers in another state of the United States, the District of Columbia, any territory of the United States or Canada or any province thereof, as applicable, so long as the amount of Indebtedness of such Borrower and its Restricted Subsidiaries is to effect a Disposition permitted pursuant to Section 7.05; andnot increased thereby and all Lien perfection steps have been satisfied, as required by the Agent.
(gb) Each Guarantor will not, and Holdings will not permit any Restricted Subsidiary may Dispose Guarantor to, consolidate, amalgamate or merge with or into or wind up into (whether or not such Guarantor is the surviving Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to, any Person unless:
(upon voluntary liquidation i) either (a) such Guarantor is the surviving Person or otherwisethe Person formed by or surviving any such consolidation, amalgamation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a Person organized or existing under the laws of the jurisdiction of organization of such Guarantor, as the case may be, or (provided it is the same country of domicile) the laws of the United States, any state thereof, the District of Columbia or any territory thereof, or Canada or any province thereof, as applicable (such Guarantor or such Person, as the case may be, being herein called the “Successor Guarantor”) and the Successor Guarantor (if other than such Guarantor) expressly assumes all the obligations of such Guarantor under the Loan Documents to which such Guarantor is a party pursuant to joinder documentation reasonably satisfactory to the Agent or (b) such sale or disposition or consolidation or merger is not in violation of Section 10.2.3;
(A) immediately after giving effect to such transaction, no Default exists;
(B) to the extent any assets of the Guarantor which is merged, amalgamated or consolidated with or into the Successor Company are assets of the type which would constitute Collateral under the Security Documents, the Successor Company will take such action as may be reasonably requested by the Agent to the extent necessary to cause such property and assets to be made subject to the Lien of the Security Documents in the manner and to the extent required by Section 10.1.11 hereof or any of the Security Documents and shall take all reasonably necessary action so that such Disposition Lien is perfected to the extent required by the Security Documents; and
(C) the Collateral owned by or series transferred to the Successor Company shall: (i) continue to constitute Collateral under the Loan Documents, (ii) be subject to the Lien in favor of related DispositionsAgent for the benefit of the applicable Secured Parties, and (iii) not be subject to any Lien other than Permitted Liens.
(ii) The Successor Guarantor will succeed to, and be substituted for, such Guarantor under the Loan Documents and such Guarantor’s Guarantee, and such Guarantor will automatically be released and discharged from its obligations under the Loan Documents. Notwithstanding the foregoing, (a) a Guarantor may merge, amalgamate or consolidate with an Affiliate incorporated or organized in the same country of domicile and solely for the purpose of reincorporating or reorganizing such Guarantor in another state of the United States, the District of Columbia, any territory of the United States or Canada or any province thereof, as applicable, so long as the amount of Indebtedness of the Guarantor is not prohibited increased thereby and all Lien perfection steps have been satisfied, as required by the Agent, (b) a Guarantor may merge, amalgamate or consolidate with another Guarantor or Holdings and (c) a Guarantor may convert into a Person organized or existing under Section 7.05the laws of the jurisdiction of organization of such Guarantor or a jurisdiction in the United States or Canada or any province thereof, as applicable, and all Lien perfection steps have been satisfied, as required by the Agent.
(iii) [Intentionally Omitted].
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves a Loan Partyany Wholly Owned Subsidiary is merging with another Restricted Subsidiary, a Loan Party the Wholly Owned Subsidiary shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;Person; and
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (iib) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest interests of the Borrower and the its Restricted Subsidiaries and is not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Wholly Owned Subsidiary, then the transferee must either be the Borrower or a Wholly Owned Subsidiary; provided, further that if the transferor in any such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;Guarantor.
(d) so long as no Event of Default exists or would result therefrom, the Borrower any Restricted Subsidiary may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 6.12.
(e) so long as no Default has occurred and is continuing or would result therefrom, each of the Borrower and any of its Restricted Subsidiaries may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided, however, that in each case, immediately after giving effect thereto (i) in the extent required pursuant case of any such merger to which the Collateral Borrower is a party, the Borrower is the surviving entity and Guarantee Requirement or (yii) in the transaction shall otherwise constitute Table of Contents case of any such merger to which any Loan Party (other than the Borrower) is a permitted Investment;party, such Loan Party is the surviving entity.
(f) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose and effect of which is to effect consummate a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.057.06.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge, amalgamate merge or consolidate with (i) the Borrower (including a mergerBorrower, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves a Loan Partyany Guarantor is merging with another Subsidiary, a Loan Party Guarantor shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(ib) any Restricted Subsidiary that is not a Loan Party the Borrower and Subsidiaries of Borrower may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary Person as necessary to consummate Acquisitions permitted hereunder; provided that if Borrower is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if party to transaction, Borrower shall be the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)surviving Person;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectivelyGuarantor;
(d) so long as no Event Dispositions of Default exists all or would result therefrom, substantially all of the Borrower may merge with assets of any Subsidiary (other Personthan a Guarantor) not otherwise permitted under this Section 7.04 shall be permitted; provided that (i) at the Borrower time of such Disposition, no Default shall be the continuing exist or surviving corporation or would result from such Disposition, (ii) if the Person formed by or surviving combined book value of all property and assets Disposed of in reliance of this clause (d) (combined with any such merger or consolidation Dispositions made pursuant to clause (j) of Section 7.05) while this Agreement is not in effect commencing from the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction Second Amendment Effective Date shall not have an adverse exceed $300,000,000 in the aggregate, and (iii) after giving effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documentsto such Disposition, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is in compliance, on a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to projected pro forma basis, with Section 7.11 for the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Actsubsequent four fiscal quarters;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly may not (1) consolidate or indirectly, merge, dissolve, liquidate, consolidate merge with or into another Person, or Dispose of Person (whether in one transaction or in a series not the Borrower is the surviving Person); or (2) sell, assign, transfer, convey or otherwise dispose of related transactions) all or substantially all of the properties or assets of the Borrower and its assets Subsidiaries taken as a whole, in one or more related transactions to another Person (whether now owned or hereafter acquired) including pursuant to or in favor of any Person, except thata Division); unless:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with either: (i) the Borrower is the surviving Person; or (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (xii) the Borrower shall be the continuing Person formed by or surviving Personany such consolidation or merger (if other than the Borrower) or to which such sale, (y) such transaction does not result in the Borrower ceasing to be assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any State thereof or state of the United States, the District of Columbia and or any territory thereof (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, as the case may be, being herein called, the “Successor Borrower”), ;
(Ab) the Successor Borrower shall be an entity organized or existing under (if other than the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (BBorrower) the Successor Borrower shall expressly assume assumes all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower it is a party pursuant to by executing a supplement hereto joinder or thereto one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent Agent;
(c) immediately after such transaction no Default or Event of Default exists;
(d) immediately after giving pro forma effect to such transaction and any related financing transactions, as if the Borrowersame had occurred at the beginning of the applicable four-quarter period, either:
(Ci) the Successor Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 7.01(a); or
(ii) the Fixed Charge Coverage Ratio for the Successor Borrower and its Restricted Subsidiaries would be equal to or greater than such ratio for the Borrower and its Restricted Subsidiaries immediately prior to such transaction;
(e) each Guarantor, unless it is the Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to any such consolidation or merger that does not survive or consolidation, shall have confirmed that its Guarantee shall apply to become the Successor Borrower’s obligations ) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guarantee; and
(f) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Loan Documents, Security Agreement in connection with such transaction and (Dy) each Guarantor, unless it is the other any party to any such consolidation or merger that does not survive or consolidation, become the Successor Borrower) shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed or another document or instrument in form reasonably satisfactory to the Administrative Agent affirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party Guaranty as confirmed pursuant to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
clause (e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02above; provided that either (x) that, for the continuing or surviving Person shall purposes of this Section 7.06 only, neither a Music Publishing Sale nor a Recorded Music Sale will be deemed to be a Restricted Subsidiarysale, which together with each of its Restricted Subsidiariesassignment, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement transfer, conveyance or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose other disposition of all or substantially all of the properties or assets of the Borrower and its assets Subsidiaries taken as a whole. For the avoidance of doubt, (upon voluntary liquidation or otherwise1) the Borrower may therefore consummate a Music Publishing Sale in accordance with Section 7.03 without complying with this Section 7.06 notwithstanding anything to the extent that contrary in this Section 7.06, (2) the Borrower may therefore consummate a Recorded Music Sale in accordance with Section 7.03 without complying with this Section 7.06 notwithstanding anything to the contrary in this Section 7.06 and (3) the determination in the preceding proviso shall not affect the determination of what constitutes all or substantially all the assets of the Borrower under any other contract to which the Borrower is a party. For the purpose of this Section 7.06, with respect to any sale, lease, transfer, conveyance or other disposition of properties or assets in connection with any acquisition (including any acquisition by means of a merger or consolidation with or into the Borrower or any Restricted Subsidiary), the determination of whether such Disposition sale, lease, transfer, conveyance or disposition constitutes a sale of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole shall be made on a pro forma basis giving effect to such acquisition. This Section 7.06 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Borrower and its Restricted Subsidiaries. Notwithstanding the foregoing clauses (c) and (d), (x) any Restricted Subsidiary may consolidate with, merge into or series transfer all or part of related Dispositionsits properties and assets to the Borrower or to another Restricted Subsidiary and (y) the Borrower may merge with an Affiliate incorporated solely for the purpose of reincorporating the Borrower in another state of the United States so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not prohibited under Section 7.05increased thereby.
Appears in 1 contract
Fundamental Changes. i. No Parent Company shall, nor shall any Parent Company permit any of the Parent Subsidiary Guarantors, and the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, consolidate or merge with or into another Person, or sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets (whether now owned or hereafter acquired) of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person except that:
(i) so long as no Default exists or would result therefrom, (x) any Subsidiary of a Parent Company (other than the Borrower and its Subsidiaries) may merge with or dissolve into (A) any Parent Company, provided that such Parent Company shall be the continuing or surviving Person (or, in the case of any such transaction involving the Parent shall be the continuing or surviving Person), (B) the Borrower, provided that the Borrower shall be the continuing or surviving Person or (C) any one or more other Subsidiaries of the Parent Companies, provided in each case that when any Parent Subsidiary Guarantor is merging with or dissolving into another Subsidiary, such Parent Subsidiary Guarantor shall be the continuing or surviving Person or such other Subsidiary shall be or become a Guarantor upon the consummation of such merger or dissolution in compliance with Section 6.12, and (y) any Subsidiary of the Borrower may merge with or dissolve into (A) the Borrower, provided that the Borrower shall be the continuing or surviving Person or (B) any one or more other Subsidiaries of the Borrower, provided in each case that when any Borrower Subsidiary Guarantor is merging with or dissolving into another Subsidiary, such Borrower Subsidiary Guarantor shall be the continuing or surviving Person or such other Subsidiary shall become a Guarantor upon the consummation of such merger or dissolution in compliance with Section 6.12;
(ii) in connection with any Investment, sale or disposition, restructuring, liquidation, winding up, dissolution or other transaction relating to the Discontinued Business Operations, any Subsidiary of the Borrower may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it or may dissolve, liquidate or otherwise wind up;
(iii) in connection with any Asset Sale permitted under Section 7.05, any Subsidiary of the Borrower may dissolve, liquidate, consolidate or merge with or into any other Person or permit any other Person to merge into or consolidate with it;
(iv) so long as no Default exists or would result therefrom, in connection with any Investment permitted under Section 7.02, any Subsidiary of the Borrower may merge or dissolve into or consolidate with any other Person or permit any other Person to merge or dissolve into or consolidate with it; provided that the Person surviving such merger, dissolution or consolidation shall be a Guarantor in compliance with Section 6.12; and
(v) any Dormant Subsidiary may dissolve, liquidate, wind up, consolidate or merge with or into any other Person; provided that in each case, immediately after giving effect thereto, in the case of any such merger, consolidation or dissolution to which the Borrower is a party, the Borrower is the surviving or continuing corporation.
ii. The Borrower shall not, nor shall it permit any of its Restricted Subsidiary Subsidiaries to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) lease all or substantially all of its assets (whether now owned properties or hereafter acquired) to or assets, in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; providedrelated transactions, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that this Section 7.04 shall not apply to (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such a merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have Parent with an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person Affiliate (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, solely for the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
reincorporating the Parent in another jurisdiction or (gii) any Restricted sale, transfer, assignment, conveyance, lease or other disposition of assets between or among the Borrower and the Borrower Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05Guarantors.
Appears in 1 contract
Sources: Credit Agreement (Dynegy Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate merge with or consolidate with liquidate into (i) the any Borrower (including a merger, the purpose of which is to reorganize the any Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, jurisdiction so long as (x) the US Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be remains organized under the laws of the United States, any State state thereof or the District of Columbia and (zy) such transaction does not have an adverse effect in any material respect on the perfection BV Borrower remains organized under the Laws of its current jurisdiction or priority the laws of the Liens granted under United States, any state thereof or the Collateral Documents District of Columbia (the requirements set forth in this clause (y) and the foregoing clause (x), collectively, the “Jurisdictional Requirements”)); provided that such Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Restricted Subsidiary that is a Loan PartyParty is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person except or (B) to the extent otherwise constituting an Investment, such Investment must be an Investment permitted by Section 7.027.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary (other than any Borrower) may liquidate or dissolve or change its legal form if the BV Borrower determines in good faith that such action is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority business of the Liens granted under the Collateral Documents)BV Borrower;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the BV Borrower or any Restricted Subsidiary may merge with any other Person; provided that Person in order to (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; 7.02 (provided that either (xA) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 6.12 and (B) to the extent required constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02) or (ii) to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 6.15; provided that if any Borrower is a party to any transaction effected pursuant to this Section 7.04(c), (1) such Borrower shall be the Collateral continuing and Guarantee Requirement surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent and (y2) the transaction Jurisdictional Requirements shall otherwise constitute a permitted Investmentbe satisfied;
(fd) any the BV Borrower and its Restricted Subsidiary Subsidiaries may effect consummate the Permitted Reorganization; and
(e) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected; and
provided that if any Borrower is a party to any transaction effected pursuant to this Section 7.04(e), (gi) any Restricted Subsidiary may Dispose such Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of all or substantially all of its assets (upon voluntary liquidation or otherwise) such Borrower in a manner reasonably acceptable to the extent that such Disposition Administrative Agent and (or series of related Dispositionsii) is not prohibited under Section 7.05the Jurisdictional Requirements shall be satisfied.
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holding N.V.)
Fundamental Changes. The Except as expressly permitted by Section 7.2 (other than clause (xvii) thereof) or Section 7.5B, Holdings, U.S. Holdings, U.S. ▇▇▇▇▇ and the Borrower shall will not, nor shall it will they permit any Restricted Subsidiary Guarantors to, directly enter into any merger, consolidation or indirectlyamalgamation, merge, dissolve, 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 Personother properties, except that:
(ai) (x) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) of the Borrower (including a mergeror any other Person may be merged, amalgamated or consolidated with or into the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (w) no Event of Default exists or would result therefrom, (xa) the Borrower shall be the continuing or surviving Person, or the Person formed by or surviving any such merger, amalgamation or consolidation (yif other than the Borrower) such transaction does not result in the Borrower ceasing to shall be an entity organized or existing under the laws of the United States, any State thereof or state thereof, the District of Columbia and or any territory thereof (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except being herein referred to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”)) and, at least five Business Days prior to such merger, amalgamation or consolidation, the Administrative Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (Bb) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent Agent, (c) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of such merger, amalgamation or consolidation, (d) if such merger, amalgamation or consolidation involves the Borrower, Holdings shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Fiscal Quarter for which Section 6.1 Financials have been delivered as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period (Cif, on a Pro Forma Basis, such Fiscal Quarter would have been a Measurement Quarter), (e) each Guarantor, unless it is the other party to such merger merger, amalgamation or consolidationconsolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor Borrower’s obligations under the Loan Documentsthis Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (Ff) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger merger, amalgamation or consolidation and any supplements to this Agreement preserve the enforceability of the Guaranty and (g) if reasonably requested by the Administrative Agent, an opinion of counsel to the effect that such supplement to merger, amalgamation or consolidation does not violate this Agreement or any Collateral Document comply with this Agreementother Loan Document; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide Agreement and (y) U.S. ▇▇▇▇▇ may merge with and into any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActSubsidiary Guarantor;
(eii) any Restricted Subsidiary may merge, amalgamate of U.S. ▇▇▇▇▇ or consolidate with the Borrower or any other Person (other than Holdings, U.S. Holdings, U.S. ▇▇▇▇▇ or the Borrower) in order to effect an Investment permitted pursuant to Section 7.02may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of U.S. ▇▇▇▇▇ or the Borrower; provided that either (xa) in the case of any merger, amalgamation or consolidation involving one or more Subsidiary Guarantors, (1) a Subsidiary Guarantor shall be the continuing or surviving corporation or (2) U.S. ▇▇▇▇▇ or the Borrower shall take all steps necessary to cause the Person shall be formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted SubsidiarySubsidiary Guarantor) to become a Subsidiary Guarantor, which together with each of its Restricted Subsidiaries, and (b) Holdings shall have complied with the requirements of Section 6.11 delivered to the extent required pursuant Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to this Agreement preserve the Collateral and Guarantee Requirement or (y) enforceability of the transaction shall otherwise constitute a permitted InvestmentGuaranty;
(fiii) any Restricted Subsidiary Guarantor may effect a mergersell, dissolutionlease, liquidation transfer or consolidation, the purpose otherwise dispose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to U.S. ▇▇▇▇▇, the extent Borrower or any other Subsidiary Guarantor; and
(iv) any Subsidiary Guarantor may liquidate or dissolve if (A) U.S. ▇▇▇▇▇ or the Borrower determines in good faith that such Disposition (liquidation or series dissolution is in the best interests of related Dispositions) the Borrower and is not prohibited under materially disadvantageous to the Lenders and (B) any assets or business not otherwise disposed of or transferred in accordance with Section 7.057.2 or 7.5A, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, another Guarantor after giving effect to such liquidation or dissolution.
Appears in 1 contract
Fundamental Changes. The Borrower shall will not, nor shall will it permit any Restricted Material Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate Person or dissolve sell, lease, transfer or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose otherwise dispose of all or substantially all of its assets (upon voluntary liquidation or otherwiseas used herein, including capital stock and/or other ownership interest) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor(collectively, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment"Disposition"), such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03except, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) a Material Subsidiary may merge into the Borrower shall be the continuing or surviving corporation another Material Subsidiary or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order if after giving effect thereto such Person becomes a Material Subsidiary, (ii) the Borrower may merge with another Person if (A) the Borrower is the corporation surviving such merger and (B) after giving effect thereto, no Default shall have occurred and be continuing, (iii) Dispositions may be made to effect an Investment permitted the Borrower or a Material Subsidiary (or a party that concurrently therewith will become a Material Subsidiary), (iv) Dispositions may be made by a Material Subsidiary to another Person that concurrently therewith will become a Material Subsidiary, (v) Dispositions may be made of all or any portion of the assets or capital stock of (or other ownership interest in) any ET Entity, or any ET Entity may merge or consolidate with any Person, (vi) Dispositions of accounts and receivables (and other related assets) pursuant to a Receivables Purchase Facility, (vii) Dispositions of Designated Charges and other related assets in connection with the issuance of any Approved Cost Recovery Bonds and (viii) Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.026.10; provided that either (x) at the continuing time of such Disposition, no Default shall exist or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 would result from such Disposition (after giving effect to the extent required pursuant to the Collateral this clause (viii)) and Guarantee Requirement or (y) the transaction aggregate book value of all property disposed of in reliance on this clause (viii) from and after the Closing Date shall otherwise constitute not exceed 15% of the greater of the total assets of the Borrower and its Subsidiaries on a permitted Investment;
consolidated basis as determined in accordance with GAAP, (fx) as shown on the consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 2020 and (y) as shown on the annual consolidated balance sheet of the Borrower and its Subsidiaries as of December 31 of the year ending (after December 31, 2020) immediately prior to such disposition; provided, however, that any Restricted Subsidiary may effect a mergerDisposition pursuant to this clause (viii) shall be for fair market value as determined in good faith by the applicable board of directors or other governing body. No such Dispositions of the types described in clauses (i)-(viii) of the previous sentence shall in any event be prohibited under this Section 6.10, dissolution, liquidation or consolidation, the purpose of which is to effect a nor shall any Disposition permitted pursuant to Section 7.05; and
clauses (gi) through (viii) above be considered in any Restricted determination as to whether any other single or series of Dispositions constituted a sale by the Borrower or any Material Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent assets; provided that such when evaluating whether a Disposition (other than a Disposition permitted pursuant to clauses (i)-(viii) above) constitutes a Disposition of all or series substantially all of related Dispositions) is not prohibited under Section 7.05the assets of such Person, such determination shall be made on the basis of the relevant assets of such Person and its subsidiaries making such Disposition, excluding for such purpose, such Person's interests, if any, in the equity or assets of the ET Entities (as if such interests in such equity or assets had never been owned by such Person).
Appears in 1 contract
Fundamental Changes. (a) The Borrower shall Principal will not, nor shall it and will not permit any Restricted Material Subsidiary to, directly or indirectlyamalgamate, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Person, or liquidate or dissolve, or permit any other Person to amalgamate, merge or consolidate with or into it, provided that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary that may amalgamate, merge or consolidate with or into the Principal in a transaction in which the Principal (which shall include the successor of any such amalgamation of the Principal and any Subsidiary) is not a Loan Party and the surviving or resulting corporation, (ii) the Principal may amalgamate with NNC, (iii) any Restricted Subsidiary may amalgamate, merge or consolidate with or into any Subsidiary in a transaction in which the surviving or resulting entity is a Subsidiary and, if any party to such transaction is a party to a Security Document as a Subsidiary Guarantor, a Lien Grantor or both, then if such surviving or resulting entity shall, as a matter of law, or pursuant to confirmation agreements or other instruments acceptable to EDC, acting reasonably, also be a Subsidiary Guarantor, Lien Grantor or both, as applicable, and (iv) any Subsidiary (except NNI) may liquidate or dissolve or change its legal form if the Borrower Principal determines in good faith that such action liquidation or dissolution is in the best interest interests of the Borrower Principal and would not materially and adversely affect the Restricted Subsidiaries and ability of the Principal to perform its obligations under this Agreement. It is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a an asset sale permitted Investment under by Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary 5.11 which is not a Loan Party in accordance with Sections 7.02 and 7.03effected through an amalgamation, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is shall not the Borrower contravene this Section 5.10.
(b) The Principal will not, and will not permit any such PersonMaterial Subsidiary to, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws engage to any material extent in any business except businesses of the United States, any state thereof or types conducted by the District of Columbia Principal and such transaction shall not have an adverse effect in any material respect its Subsidiaries on the perfection or priority date of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05thereto.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate consolidate, 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; provided that, except subject to Section 7.12 and provided that:
, after giving effect to any such transaction, no Default or Event of Default shall exist, (a) any Restricted Subsidiary the Company may merge, amalgamate merge or consolidate with (i) the Borrower (including a merger, the purpose any of which is to reorganize the Borrower into a new jurisdiction); its Subsidiaries provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower Company shall be the continuing or surviving Personcorporation, (yb) such transaction does not result in the Borrower ceasing to be organized under the laws (i) any Subsidiary of the United States, Company may merge or consolidate with any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority other Subsidiary of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), Company provided that when such transaction involves if a Loan PartyParty is a party thereto, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may mergecorporation, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary Company may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Subsidiary of the Borrower or to another Restricted Subsidiary; Company provided that if a Loan Party is the transferor in such transaction a transaction is a GuarantorLoan Party shall be the transferee, then (c) any Loan Party other than the Company may merge or consolidate with any other Loan Party other than the Company, (d) any Foreign Subsidiary may be merged or consolidated or amalgamated with or into any Loan Party provided that such Loan Party shall be the continuing or surviving corporation, (e) any Foreign Subsidiary may be merged, consolidated or amalgamated with or into any other Foreign Subsidiary (provided, that, (i) the transferee must be if a Guarantor Designated Borrower is a party to any such merger or the Borrower or (ii) to the extent constituting an Investmentconsolidation, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Designated Borrower shall be the continuing or surviving corporation or corporation, and (ii) if the Person formed by or surviving a Designated Borrower is a party to any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”)amalgamation, (A) prior to the Successor Borrower shall be an entity organized or existing under the Laws consummation of the United Statessuch amalgamation, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, Lender shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (DI) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any received all documentation and other information about the Successor Borrower as shall have been that it has reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that it has reasonably determined is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
Act and the Beneficial Ownership Regulation, and (eII) approved such amalgamation (which approval shall not be unreasonably delayed or denied or require the payment of a fee or other consideration), and (B) promptly upon the consummation of such amalgamation, and in any Restricted Subsidiary event, within one (1) Business Day of the consummation thereof (or such later date as may mergebe agreed by the Administrative Agent in its sole discretion), amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) Company and the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, amalgamated company shall have complied delivered (I) an acknowledgment and confirmation from the amalgamated company with the requirements of Section 6.11 respect to the extent required pursuant assumption and ratification of all rights, obligations, duties and liabilities of such Designated Borrower under this Agreement and the other Loan Documents immediately prior to the Collateral consummation of such amalgamation and Guarantee Requirement (II) such supporting resolutions, incumbency certificates, opinions of counsel and other documents or (y) information, in form, content and scope reasonably satisfactory to the transaction shall otherwise constitute a permitted Investment;
Administrative Agent, as may be reasonably required by the Administrative Agent or the Required Lenders with respect to the amalgamated company), (f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(gi) any Restricted Subsidiary that is a Loan Party may Dispose of wind up, liquidate or dissolve itself so long as it transfers all or substantially all of its assets (upon voluntary to a Loan Party prior to such wind up, liquidation or otherwisedissolution and (ii) to the extent any Subsidiary that such Disposition (or series of related Dispositions) is not prohibited under a Loan Party may wind up, liquidate or dissolve itself so long as it transfers all or substantially all of its assets to a Loan Party or a Subsidiary of a Loan Party prior to such wind up, liquidation or dissolution, and (g) any Subsidiary of the Company that is not a Loan Party may merge with any Person so long as the entity surviving such merger is a wholly-owned Subsidiary of the Company.”
(f) Section 7.05.8.09 of the Credit Agreement is hereby amended and restated as follows:
Appears in 1 contract
Fundamental Changes. The Borrower shall not(i) No Obligor will, nor shall will it permit any Restricted Subsidiary of its Subsidiaries to, directly merge into or indirectly, merge, dissolve, liquidate, 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, except that:
(a) any Restricted Subsidiary may merge, amalgamate merge into or consolidate with (i) it, consummate a Division as the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Dividing Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets, or all or substantially all of the stock of its Subsidiaries (in each case, whether now owned or hereafter acquired), in a single transaction or a series of transactions, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing (A) any Subsidiary may merge into an Obligor in a transaction in which such Obligor is the surviving corporation, (B) any Subsidiary may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary (provided that if either such Subsidiary is a Credit Party, the surviving Subsidiary shall be a Credit Party (and if either such Subsidiary is an Obligor, the surviving entity shall be such Obligor)), (C) any Subsidiary may Dispose of its assets (upon voluntary liquidation or otherwise) to the Borrower Issuer or to another Restricted Subsidiary; Subsidiary (provided that if the transferor in Subsidiary making such a transaction Disposition is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an InvestmentCredit Party, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower Disposition shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto Credit Party or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to a Subsidiary that becomes a Credit Party substantially contemporaneously with such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan DocumentsDisposition), (D) each Guarantor, unless it any Subsidiary (other than the Issuer) may liquidate or dissolve if the Issuer determines in good faith that such liquidation or dissolution is in the other party to such merger or consolidation, shall have by a supplement best interests of the Issuer and is not materially disadvantageous to the Security Agreement Purchasers and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by in the Collateral Agentevent that any Foreign Borrower does not then have any Loans (as defined in the Bank Credit Agreement) or Letters of Credit (as defined in the Bank Credit Agreement) outstanding for its account, each mortgagor of a Mortgaged Property, unless it is the other party to such merger Foreign Borrower may liquidate or consolidation, shall have by an amendment to dissolve or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate merge into or consolidate with any other Person (other than in which case the Borrower) in order Issuer shall provide notice of such transaction to effect an Investment permitted pursuant Prudential and the holders of Notes and such Foreign Borrower shall cease to Section 7.02be a Foreign Borrower under the Bank Credit Agreement upon the consummation thereof); provided that either (x) the continuing any such merger or surviving Division involving a Person that is not a Wholly-Owned Subsidiary immediately prior to such merger or Division shall not be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;unless also permitted by paragraph 6M.
(fii) The Obligors will not, and will not permit any Restricted Subsidiary may effect a mergerof their respective Subsidiaries to, dissolution, liquidation or consolidation, engage to any material extent in any business other than businesses of the purpose type conducted by such Obligor and its respective Subsidiaries on the date of which is to effect a Disposition permitted pursuant to Section 7.05; andexecution of this Agreement and businesses reasonably related thereto.
(giii) any Restricted Subsidiary may Dispose The Obligors will not permit their fiscal year to end on a day other than December 31 or change such Obligor’s method of all or substantially all of determining its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05fiscal quarters.
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Lci Industries)
Fundamental Changes. The (a) Neither Holdings nor the Borrower shall notwill, nor shall it will they permit any Restricted Subsidiary to, directly merge into or indirectly, merge, dissolve, liquidate, consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in consolidate with it, consummate a series of related transactions) all Division as the Dividing Person or substantially all of its assets (whether now owned otherwise or hereafter acquired) to liquidate or in favor of any Persondissolve, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Person may merge with and into the Borrower (including in a merger, transaction in which the purpose of which surviving entity is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists Person organized or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized existing under the laws of the United StatesStates of America, any State thereof or the District of Columbia and (z) and, if such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation entity is not the Borrower (any Borrower, such PersonPerson expressly assumes, the “Successor Borrower”)in writing, (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any provides all documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is such Person required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
, that has been requested by the Administrative Agent or the Lenders, (eii) any Person may merge with and into any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary and, if any party to such merger is a Subsidiary Loan Party, is or becomes a Subsidiary Loan Party concurrently with such merger, (iii) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than a Subsidiary Loan Party) may liquidate or dissolve (whether effected pursuant to a Division or otherwise) if the BorrowerBorrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially adverse to the Lenders, (iv) in order to effect an any asset sale permitted by Section 6.05 or Investment permitted pursuant to by Section 7.02; provided that either 6.04 may be effected through the merger of a subsidiary of the Borrower with a third party and (v) the Borrower or any Restricted Subsidiary may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, (x) the continuing assets of the applicable Dividing Person are held by the Borrower or surviving one or more Restricted Subsidiaries at such time and, if the Dividing Person is the Borrower and is not a Division Successor, (A) one of the Division Successors of the Borrower organized or existing under the laws of the United States of America, any State thereof or the District of Columbia expressly assumes, in writing, all the obligations of the Borrower under the Loan Documents and (B) the Division Successor described in the immediately preceding subclause (A) shall be a Restricted Subsidiary(1) own, which together directly or indirectly, all of the assets (including, without limitation, any Equity Interests) owned by the Borrower immediately prior to the Division or (2) with each of its respect to any assets not so owned by such Division Successor pursuant to the immediately preceding subclause (1), such Division, shall comply with the immediately succeeding clause (y), or, (y) with respect to assets not held by the Borrower or one or more Restricted Subsidiaries, shall have complied with such Division, in the requirements of aggregate, would otherwise be permitted by this Section 6.11 6.03 (without reliance on this subclause (v)), Section 6.04 and/or Section 6.05.
(b) Holdings will not, and will not permit any Restricted Subsidiary to, engage to any material extent in any business other than a Permitted Business. Investments, Loans, Advances, Guarantees and Acquisitions. Holdings will not, and will not permit any Restricted Subsidiary to, purchase or acquire (including pursuant to any merger with, or as a Division Successor pursuant to the extent required Division of any Person that was not a wholly owned Restricted Subsidiary prior to such merger or Division) any Equity Interests in or evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make any loans or advances to, Guarantee any obligations of, or make any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit (collectively, “Investments”), except: (a) Permitted Acquisitions, (b) Permitted Investments, (c) Investments existing on the Closing Date and set forth on Schedule 6.04 and any Investments consisting of extensions, modifications or renewals of any such Investments (excluding any such extensions, modifications or renewals involving additional advances, contributions or other investments of cash or property or other increases thereof unless it is a result of the accrual or accretion of interest or OID or payment-in- kind pursuant to the terms, as of the Closing Date, of the original Investment so extended, modified or renewed), (d) Investments by Holdings or any Restricted Subsidiaries in Equity Interests in their respective Restricted Subsidiaries; provided that (A) any such Equity Interests held by a Loan Party shall be pledged pursuant to the Collateral and Guarantee Requirement or Agreement (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) subject to the extent that such Disposition (or series limitations referred to in the definition of related Dispositions) is not prohibited under Section 7.05.“Collateral and
Appears in 1 contract
Sources: Credit Agreement (Concentra Group Holdings Parent, Inc.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (2K)
(a) any Restricted Subsidiary may merge, amalgamate or consolidate merge with (i) the Borrower (including a merger, the sole purpose of which is to reorganize the Borrower into a new jurisdiction); provided provided, that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, Person and (y) such transaction merger does not result in the Borrower ceasing to be organized incorporated under the laws Laws of the United States, any State state thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents Columbia, or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Restricted Subsidiary that is a Loan PartyParty is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form (subject, (x) in the case of any change of legal form, to any such Restricted Subsidiary that is a Guarantor remaining a Guarantor and (y) in the case of a liquidation or distribution of a Loan Party, the assets of such Loan Party are transferred to a Loan Party and the security interests of the Collateral Agent in the assets so transferred remain perfected at least to the same extent that such security interests were perfected immediately prior thereto) if the Borrower determines in good faith that such action is in the best interest interests of the Borrower and the Restricted its Subsidiaries and such change is not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorGuarantor or the Borrower, then (i) the transferee must either be the Borrower or a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral DocumentsColumbia, (B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor BorrowerCompany’s obligations under the Loan Documentsthis Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documentsthis Agreement, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under this Agreement, (F) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (2K) immediately after giving effect to such merger or consolidation, the Loan DocumentsSuccessor Company and the Restricted Subsidiaries shall be in Pro Forma Compliance with the Financial Covenant, such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such merger or consolidation had been consummated as of the first day of the fiscal period covered thereby and evidenced by a certificate from the chief financial officer of the Successor Company demonstrating such compliance calculation in reasonable detail, and (FG) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, amalgamate or consolidate merge with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment6.11;
(f) any Restricted Subsidiary may effect [Reserved]; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Fundamental Changes. (a) The Borrower shall will not, nor shall it and will not permit any Restricted Subsidiary to, directly merge or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction dissolve, liquidate or in a series of related transactions) all or substantially all of wind-up its assets (whether now owned or hereafter acquired) to or in favor of any Personaffairs, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) so long as no Event of Default exists or would result therefrom, : (xi) the Borrower shall be may merge or consolidate with or into any Person; provided that (A) the Borrower is the continuing or surviving Person or (B) if the Borrower is not the continuing or surviving Person, (y1) such transaction does not result in the Borrower ceasing to be Person is a corporation organized under the laws Laws of a State of the United States, any State thereof or the District of Columbia and (z2) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except prior to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all concurrently with the consummation of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not consolidation, (x) such Person shall execute and deliver to the Borrower Administrative Agent an assumption agreement (any such Person, the “Successor BorrowerAssumption Agreement”), (A) in form and substance reasonably satisfactory to the Successor Borrower Administrative Agent, pursuant to which such Person shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all of the obligations of the Borrower under this Agreement and the other Loan Documents Documents, and (y) such Person shall deliver to which the Borrower is a party pursuant Administrative Agent such documents, certificates and opinions as the Administrative Agent may reasonably request relating to a supplement hereto such Person, such merger or thereto consolidation or the Assumption Agreement, all in form and substance reasonably satisfactory to the Administrative Agent Agent, and (3) the Lenders and the BorrowerL/C Issuers shall have received, at least three (C3) each Guarantor, unless it is Business Days prior to the other party to date of the consummation of such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (Dx) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any all documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is regarding such Person required by bank regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot PATRIOT Act;
, that has been reasonably requested by the Administrative Agent, any Lender or any L/C Issuer at least ten (e10) Business Days prior to the date of the consummation of such merger or consolidation and (y) to the extent such Person qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Person, it being agreed that upon the execution and delivery to the Administrative Agent of the Assumption Agreement and the satisfaction of the other conditions set forth in this clause (B), such Person shall become a party to this Agreement, shall succeed to and assume all the rights and obligations of the Borrower under this Agreement and the other Loan Documents (including all obligations in respect of outstanding Loans made to, and Letters of Credit issued for the account of, the Borrower) and shall thenceforth, for all purposes of this Agreement and the other Loan Documents, be the “Borrower”; (ii) any Restricted Subsidiary may merge, amalgamate merge or consolidate with or into any other Person in a transaction in which the continuing or surviving entity is the Borrower or a Subsidiary (other than the Borrower) in order and, if any party to effect an Investment permitted pursuant to Section 7.02; provided that either (x) such merger or consolidation is a Subsidiary Guarantor, the continuing or surviving Person shall be be, or substantially concurrently therewith shall become, the Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or Subsidiary Guarantor); (y) the transaction shall otherwise constitute a permitted Investment;
(fiii) any Restricted Subsidiary (other than a Subsidiary Guarantor) may merge or consolidate with or into any Person in a transaction permitted under Section 8.04(b) in which, after giving effect to such transaction, the continuing or surviving entity is not a mergerSubsidiary; and (iv) any Subsidiary (other than a Subsidiary Guarantor) may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or consolidationwinding up, as applicable, would not reasonably be expected, individually or in the purpose of which is aggregate, to effect have a Disposition permitted pursuant to Section 7.05; andMaterial Adverse Effect.
(gb) The Borrower will not, and will not permit any Restricted Subsidiary may Dispose to, sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions, including by means of any merger or consolidation) all or substantially all of the assets of the Borrower and its assets Subsidiaries, taken as a whole (upon voluntary liquidation in each case, whether now owned or otherwisehereafter acquired), it being understood that this Section 8.04(b) to shall not restrict mergers and consolidations or any sales, transfers, leases or other dispositions, in each case, between or among the extent that such Disposition Borrower and its Subsidiaries.
(c) The Borrower will not, and will not permit any Subsidiary to, engage in any material line of business substantially different from those lines of business conducted by the Borrower and its Subsidiaries on the Restatement Effective Date or series of any business substantially related, complementary or incidental thereto, including customer experience solutions, business process outsourcing services, and related Dispositions) is not prohibited under Section 7.05sales and services.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Concentrix Corp)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate merge or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, Person and (y) such transaction merger or consolidation does not result in the Borrower ceasing to be organized incorporated under the laws Laws of the United States, any State state thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Columbia;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is not a Loan Party Party, provided that, if any party to such merger or consolidation is a Qualified Restricted Subsidiary, a Qualified Restricted Subsidiary shall be the continuing or surviving Person and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest interests of the Borrower and the Restricted its Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents)Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must be a Guarantor or the Borrower Loan Party or (ii) to the extent constituting an InvestmentInvestment or giving rise to the incurrence of Indebtedness, such Investment or Indebtedness must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with pursuant to Sections 7.02 (other than 7.02(f)) and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation corporation, (ii) to the extent constituting an Investment or giving rise to the incurrence of Indebtedness, such Investment and such Indebtedness must be permitted pursuant to Sections 7.02 and 7.03, respectively, or (iiiii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral DocumentsColumbia, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents Guaranty confirmed that the collateral granted by it to secure its obligations thereunder Guarantee shall apply to secure its and the Successor Borrower’s obligations under the Loan Documentsthis Agreement, (ED) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged PropertyLoan Party, 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 a supplement to the Collateral Agent) Security Agreement confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under this Agreement, (E) in the case of a merger or consolidation of the Borrower and SCA LLC in which SCA LLC shall be the continuing or surviving corporation, the Borrower shall have no direct Subsidiaries at the time of such merger or consolidation other than SCA LLC and, after giving effect to such merger or consolidation, SCA LLC shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents, Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided provided, further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, amalgamate merge or consolidate with any other Person (other than the Borroweri) in order to effect an Investment permitted pursuant to Section 7.027.02 or (ii) for any other purpose; provided that either (xA) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 6.11; (B) if the merger or consolidation involves a Qualified Restricted Subsidiary that is not a Guarantor and such Qualified Restricted Subsidiary is not the surviving Person, the surviving Person must be a Qualified Restricted Subsidiary, (C) to the extent required such merger or consolidation constitutes an Investment or gives rise to the incurrence of Indebtedness, such Investment or such Indebtedness must be permitted pursuant to Sections 7.02 and 7.03, respectively, and (D) if the Collateral merger or consolidation involves a Guarantor and Guarantee Requirement 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 (y) thereto in form reasonably satisfactory to the transaction shall otherwise constitute a permitted Investment;Administrative Agent; and
(f) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or consolidationDisposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate merge with or consolidate with liquidate into (i) the any Borrower (including a merger, the purpose of which is to reorganize the any Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, jurisdiction so long as (x) the US Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be remains organized under the laws of the United States, any State state thereof or the District of Columbia and (zy) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted BV Borrower remains organized under the Collateral Laws of its current jurisdiction or the Laws of another jurisdiction that permits all payments required to be made by such Borrower hereunder and under the other Loan Documents to be made free and clear of and without deduction for any Taxes or such Borrower agrees to indemnify each Agent and each Lender for the full amount of such Taxes and any liability arising therefrom or with respect thereto in the manner provided in Article 3 (the requirements set forth in this clause (y) and the foregoing clause (x), collectively, the “Jurisdictional Requirements”)); provided that such Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent, or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves any Restricted Subsidiary that is a Loan PartyParty is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person except or (B) to the extent otherwise constituting an Investment, such Investment must be an Investment permitted by Section 7.027.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary (other than any Borrower) may liquidate or dissolve or change its legal form if the BV Borrower determines in good faith that such action is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority business of the Liens granted under the Collateral Documents)BV Borrower;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the BV Borrower or any Restricted Subsidiary may merge with any other Person; provided that Person in order to (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; 7.02 (provided that either (xA) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 6.12 and (B) to the extent required constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02) or (ii) to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 6.16; provided that if any Borrower is a party to any transaction effected pursuant to this Section 7.04(c), (1) such Borrower shall be the Collateral continuing and Guarantee Requirement surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent and (y2) the transaction Jurisdictional Requirements shall otherwise constitute a permitted Investmentbe satisfied;
(fd) any the BV Borrower and its Restricted Subsidiary Subsidiaries may effect consummate the Acquisition and the transactions contemplated thereby (including the corporate restructuring transactions previously disclosed to the Administrative Agent); and
(e) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected; and
provided that if any Borrower is a party to any transaction effected pursuant to this Section 7.04(e), (gi) any Restricted Subsidiary may Dispose such Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of all or substantially all of its assets (upon voluntary liquidation or otherwise) such Borrower in a manner reasonably acceptable to the extent that such Disposition Administrative Agent and (or series of related Dispositionsii) is not prohibited under Section 7.05the Jurisdictional Requirements shall be satisfied.
Appears in 1 contract
Sources: Credit Agreement (Sensata Technologies Holland, B.V.)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly may not (1) consolidate or indirectly, merge, dissolve, liquidate, consolidate merge with or into another Person, or Dispose of Person (whether in one transaction or in a series not the Borrower is the surviving Person); or (2) sell, assign, transfer, convey or otherwise dispose of related transactions) all or substantially all of the properties or assets of the Borrower and its assets (whether now owned Subsidiaries taken as a whole, in one or hereafter acquired) more related transactions to or in favor of any another Person, except that; unless:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with either: (i) the Borrower is the surviving Person; or (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (xii) the Borrower shall be the continuing Person formed by or surviving Personany such consolidation or merger (if other than the Borrower) or to which such sale, (y) such transaction does not result in the Borrower ceasing to be assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United States, any State thereof or state of the United States, the District of Columbia and or any territory thereof (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, as the case may be, being herein called the “Successor Borrower”), ;
(Ab) the Successor Borrower shall be an entity organized or existing under (if other than the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (BBorrower) the Successor Borrower shall expressly assume assumes all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower it is a party pursuant to by executing a supplement hereto joinder or thereto one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent Agent;
(c) immediately after such transaction no Default or Event of Default exists;
(d) immediately after giving pro forma effect to such transaction and any related financing transactions, as if the Borrowersame had occurred at the beginning of the applicable four-quarter period, either
(Ci) the Successor Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 8.1(a); or
(ii) the Fixed Charge Coverage Ratio for the Successor Borrower and its Restricted Subsidiaries would be equal to or greater than such ratio for the Borrower and its Restricted Subsidiaries immediately prior to such transaction;
(e) each Guarantor, unless it is the Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to any such consolidation or merger that does not survive or consolidation, shall have confirmed that its Guarantee shall apply to become the Successor Borrower’s obligations ) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guarantee; and
(f) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Loan Documents, Security Agreement in connection with such transaction and (Dy) each Guarantor, unless it is the other any party to any such consolidation or merger that does not survive or consolidation, become the Successor Borrower) shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed or another document or instrument in form reasonably satisfactory to the Administrative Agent affirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party Guarantee as confirmed pursuant to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
clause (e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02above; provided that either (x) that, for the continuing or surviving Person shall purposes of this Section 8.6 only, neither a Music Publishing Sale nor a Recorded Music Sale will be deemed to be a Restricted Subsidiarysale, which together with each of its Restricted Subsidiariesassignment, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement transfer, conveyance or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose other disposition of all or substantially all of the properties or assets of the Borrower and its assets Subsidiaries taken as a whole. For the avoidance of doubt, (upon voluntary liquidation or otherwise1) the Borrower may therefore 1002368556v5 #88946885v8 consummate a Music Publishing Sale in accordance with Section 8.3 without complying with this Section 8.6 notwithstanding anything to the extent that contrary in this Section 8.6, (2) the Borrower may therefore consummate a Recorded Music Sale in accordance with Section 8.3 without complying with this Section 8.6 notwithstanding anything to the contrary in this Section 8.6 and (3) the determination in the preceding proviso shall not affect the determination of what constitutes all or substantially all the assets of the Borrower under any other contract to which the Borrower is a party. For the purpose of this Section 8.6, with respect to any sale, lease, transfer, conveyance or other disposition of properties or assets in connection with any acquisition (including any acquisition by means of a merger or consolidation with or into the Borrower or any Restricted Subsidiary), the determination of whether such Disposition sale, lease, transfer, conveyance or disposition constitutes a sale of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole shall be made on a pro forma basis giving effect to such acquisition. This Section 8.6 will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among the Borrower and its Restricted Subsidiaries. Notwithstanding the foregoing clauses (c) and (d), (x) any Restricted Subsidiary may consolidate with, merge into or series transfer all or part of related Dispositionsits properties and assets to the Borrower or to another Restricted Subsidiary and (y) the Borrower may merge with an Affiliate incorporated solely for the purpose of reincorporating the Borrower in another state of the United States so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not prohibited under Section 7.05increased thereby.
Appears in 1 contract
Sources: Incremental Commitment Amendment (Warner Music Group Corp.)
Fundamental Changes. The Dissolve, liquidate, merge or consolidate with or into another Person or consummate any Delaware LLC Division, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Company and its Subsidiaries (taken as a whole) to or in favor of any Person, except that:
(a) the Company or the Revolving Borrower may merge or consolidate with or into any Person as part of an Acquisition or Investment not prohibited hereunder, provided that (i) the Company or the Revolving Borrower, as applicable, shall be the continuing or surviving Person and (ii) no Event of Default exists or would result therefrom;
(i) any Subsidiary (other than the Revolving Borrower) may merge or consolidate with or into (x) the Company, provided that the Company shall be the continuing or surviving Person, (y) the Revolving Borrower, provided that the Revolving Borrower shall notbe the continuing or surviving Person, nor or (z) any one or more other Subsidiaries, provided that when any Subsidiary Guarantor is merging or consolidating with another Subsidiary that is not a Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person, (ii) any Subsidiary (other than the Revolving Borrower) may liquidate or dissolve, or the Revolving Borrower or any Subsidiary may change its legal form if the Company determines in good faith that such action is in the best interest of the Company and its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it permit being understood that in the case of any Restricted dissolution of a Subsidiary tothat is a Guarantor, directly such Subsidiary shall, at or indirectlybefore the time of such dissolution, mergetransfer its assets to the Company or another Subsidiary unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor, unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder) and (iii) the Company may merge or consolidate with or into the Revolving Borrower; provided that the Revolving Borrower is the surviving Person;
(c) any Subsidiary (other than the Revolving Borrower) may (i) Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or to another Subsidiary; provided that if the transferor in such a transaction is a Subsidiary Guarantor, then the transferee must either be the Company, the Revolving Borrower or a Subsidiary Guarantor and (ii) merge or consolidate with, or Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Person (that is not a Subsidiary) so long as such merger, consolidation or Disposition does not constitute a Disposition of all or substantially all of the assets of the Company and its Subsidiaries (taken as a whole) to such other Person; and
(d) any Subsidiary may sell all or substantially all of its Permitted Retail Installment Contracts and Related Property pursuant to Permitted Sale Facilities; provided, however, that (i) any Excluded Subsidiary may dissolve, liquidate, or merge or consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Specified Subsidiary may liquidate or dissolve or change liquidate if, in connection with such dissolution or liquidation, all assets of such Specified Subsidiary are distributed to its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05parent company.
Appears in 1 contract
Sources: Credit Agreement (Carmax Inc)
Fundamental Changes. (a) The Borrower shall will not, nor shall it and will not permit any Restricted Subsidiary to, directly merge or indirectly, merge, dissolve, liquidate, consolidate with or into another any other Person, or Dispose permit any other Person to merge 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 its assets, or all or substantially all the stock of its assets any Subsidiary (in each case, whether now owned or hereafter acquired) to ), or in favor of any Personliquidate or dissolve, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with 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 (including or any other Subsidiary; provided, that in the case of any merger of one Subsidiary into another, if either of such Subsidiaries shall be a mergerGuarantor, the purpose of which is surviving or resulting Subsidiary must at all times after such merger be a Guarantor; (ii) any Subsidiary may sell, lease or otherwise transfer all or substantially all its assets to reorganize the Borrower into or to another Subsidiary; provided, that in the case of any such transfer by one Subsidiary to another, if the transferor Subsidiary shall be a new jurisdiction)Guarantor, the transferee Subsidiary must at all times after such transfer be a Guarantor; provided (iii) any Person other than a Subsidiary may merge with the Borrower or a Subsidiary; provided, that (wA) no Event in the case of Default exists a merger to which the Borrower is a party, the Borrower must be the surviving or would result therefromresulting corporation, (xB) in the case of a merger to which a Subsidiary is a party, the surviving or resulting Person must be a Subsidiary (and, if any such constituent Subsidiary shall have been a Guarantor, a Guarantor) and (C) in the case of any merger referred to in this clause (iii), the Borrower shall be in compliance on a pro forma basis with the continuing or surviving Person, (y) such transaction does not result covenants set forth in the Borrower ceasing to be organized under the laws Sections 6.08 and 6.09 as of the United Statesend of and for the most recent period of four fiscal quarters for which financial statements shall have been delivered pursuant to Section 5.01, giving effect to such merger and any State thereof related incurrence or repayment of Indebtedness as if it had occurred at the District beginning of Columbia such period; and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(iiv) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interest interests of the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders Lenders.
(b) The Borrower will not, and will not permit any Subsidiary to, engage to any material extent in any material respect (it being understood that (business other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in businesses of the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, type conducted by the Borrower and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect Subsidiaries on the perfection or priority date of execution of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Existing Credit Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05thereto.
Appears in 1 contract
Sources: Revolving Credit Bridge Facility Agreement (Convergys Corp)
Fundamental Changes. (a) The Borrower shall Borrowers will not, nor shall it will they permit any Restricted Subsidiary to, directly merge or indirectly, merge, dissolve, liquidate, consolidate with or into another into, or acquire all or substantially all of the assets of, any Person, or Dispose sell, transfer, lease 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 Persontheir assets, except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 TRKK) may merge with, consolidate into or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted SubsidiarySubsidiary and in connection therewith such Subsidiary may be liquidated or dissolved; provided PROVIDED, that (A) MTS shall not own a lesser percentage of the surviving or resulting Person than it owned in either of the constituent Persons or the transferor, as the case may be, and (B) if the transferor in such a transaction is a Guarantor, then (i) a Grantor or a Subsidiary the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness capital stock of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing equity interests in which are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pledged pursuant to the Collateral and Guarantee Requirement Pledge Agreement shall merge, consolidate or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of transfer all or substantially all of its assets, the Borrowers shall cause each Subsidiary resulting from such merger or consolidation or receiving assets (upon voluntary liquidation or otherwise) as a result of such transfer, to become a party to the Guarantee Agreement and the Security Documents, and shall cause the capital stock of or other equity interests in such Subsidiary to be pledged pursuant to the Pledge Agreement, to at least the same extent as such merging, consolidating or transferring Subsidiary and the capital stock or other equity interests thereof or therein;
(ii) the Borrowers or any of the Subsidiaries may sell or dispose of assets in accordance with the provisions of Section 6.06;
(iii) the Borrowers or any of the Subsidiaries may make any investment permitted by Section 6.05; and
(iv) either of the Borrowers may merge with or consolidate into any other Person, PROVIDED that (A) the merging or consolidating Borrower is the surviving corporation, (B) the Guarantee Requirement and the Collateral Requirement continue to be satisfied and (C) no Default exists or would occur as a result thereof.
(b) The Borrowers will not, nor will they permit any Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the such Disposition (or series Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related Dispositions) is not prohibited under Section 7.05thereto.
Appears in 1 contract
Sources: Credit Agreement (MTS Inc)
Fundamental Changes. The Except as expressly permitted by Section 7.2 (other than clause (xvii) thereof) or Section 7.5B, Holdings, U.S. Holdings, U.S. ▇▇▇▇▇ and the Borrower shall will not, nor shall it will they permit any Restricted Subsidiary Guarantors to, directly enter into any merger, consolidation or indirectlyamalgamation, merge, dissolve, 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 Personother properties, except that:
(ai) (x) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) of the Borrower (including a mergeror any other Person may be merged, amalgamated or consolidated with or into the purpose of which is to reorganize the Borrower into a new jurisdiction)Borrower; provided that (w) no Event of Default exists or would result therefrom, (xa) the Borrower shall be the continuing or surviving Person, or the Person formed by or surviving any such merger, amalgamation or consolidation (yif other than the Borrower) such transaction does not result in the Borrower ceasing to shall be an entity organized or existing under the laws of the United States, any State thereof or state thereof, the District of Columbia and or any territory thereof (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except being herein referred to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Borrower”)) and, at least five Business Days prior to such merger, amalgamation or consolidation, the Administrative Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (Bb) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent Agent, (c) no Default or Event of Default shall have occurred and be continuing or would result from the consummation of such merger, amalgamation or consolidation, (d) if such merger, amalgamation or consolidation involves the Borrower, Holdings shall be in compliance, on a Pro Forma Basis after giving effect to such merger, amalgamation or consolidation, with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Fiscal Quarter for which Section 6.1 Financials have been delivered as if such merger, amalgamation or consolidation had occurred on the first day of such Test Period (Cif, on a Pro Forma Basis, such Fiscal Quarter would have been a Measurement Quarter), (e) each Guarantor, unless it is the other party to such merger merger, amalgamation or consolidationconsolidation or unless the Successor Borrower is the Borrower, shall have by a supplement to the Guaranty confirmed that its Guarantee Guaranty shall apply to the Successor Borrower’s obligations under the Loan Documentsthis Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (Ff) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger merger, amalgamation or consolidation and any supplements to this Agreement preserve the enforceability of the Guaranty and (g) if reasonably requested by the Administrative Agent, an opinion of counsel to the effect that such supplement to merger, amalgamation or consolidation does not violate this Agreement or any Collateral Document comply with this Agreementother Loan Document; provided further, that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower (if other than the Borrower) will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide Agreement and (y) U.S. ▇▇▇▇▇ may merge with and into any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActSubsidiary Guarantor;
(eii) any Restricted Subsidiary may merge, amalgamate of U.S. ▇▇▇▇▇ or consolidate with the Borrower or any other Person (other than Holdings, U.S. Holdings, U.S. ▇▇▇▇▇ or the Borrower) in order to effect an Investment permitted pursuant to Section 7.02may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of U.S. ▇▇▇▇▇ or the Borrower; provided that either (xa) in the case of any merger, amalgamation or consolidation involving one or more Subsidiary Guarantors, (1) a Subsidiary Guarantor shall be the continuing or surviving corporation or (2) U.S. ▇▇▇▇▇ or the Borrower shall take all steps necessary to cause the Person shall be formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted SubsidiarySubsidiary Guarantor) to become a Subsidiary Guarantor, which together with each of its Restricted Subsidiaries, and (b) Holdings shall have complied with the requirements of Section 6.11 delivered to the extent required pursuant Administrative Agent an officer’s certificate stating that such merger, amalgamation or consolidation and any supplements to this Agreement preserve the Collateral and Guarantee Requirement or (y) enforceability of the transaction shall otherwise constitute a permitted InvestmentGuaranty;
(fiii) any Restricted Subsidiary Guarantor may effect a mergersell, dissolutionlease, liquidation transfer or consolidation, the purpose otherwise dispose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to U.S. ▇▇▇▇▇, the extent Borrower or any other Subsidiary Guarantor;
(iv) any Subsidiary Guarantor may liquidate or dissolve if (A) U.S. ▇▇▇▇▇ or the Borrower determines in good faith that such Disposition (liquidation or series dissolution is in the best interests of related Dispositions) the Borrower and is not prohibited under materially disadvantageous to the Lenders and (B) any assets or business not otherwise disposed of or transferred in accordance with Section 7.057.2 or 7.5A, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, another Guarantor after giving effect to such liquidation or dissolution; and
(v) Holdings and the Restricted Subsidiaries may consummate the Acquisition and the Internal Reorganization.
Appears in 1 contract
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(ai) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the a Borrower (including a merger, the purpose of which is to reorganize the a Borrower into a new jurisdictionjurisdiction in the United States); provided that such Borrower (was a newly recognized entity) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia Person and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries); provided, in the case of this clause (ii), provided that when such transaction involves any Person that is a Loan PartyParty is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form if the Lead Borrower determines in good faith that such action is in the best interest of the Borrower Albertson’s Group and the Restricted Subsidiaries and is if not materially disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, (x) any Borrower shall remain a Restricted Borrower and (y) a Subsidiary that is a Guarantor will remain a Guarantor and unless such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral DocumentsGuarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Holdco or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a GuarantorLoan Party, then (i) the transferee must be a Guarantor or the Borrower Loan Party or (ii) to the extent constituting an Investment, such Investment must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections Section 7.02 (other than clause (e) of the definition of Permitted Investments) and Section 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the a Borrower may merge with any other Person; provided that (i) the such Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the a Borrower (any such Person, the “Successor BorrowerCompany”), (A) the Successor Borrower Company shall be an entity organized or existing under the Laws of the United States, any state thereof or thereof, the District of Columbia and such transaction shall not have an adverse effect in or any material respect on the perfection or priority of the Liens granted under the Collateral Documentsterritory thereof, (B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, including the Guarantee, shall continue to apply to the Successor Company’s obligations under the Loan Agreements, (D) each GuarantorLoan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Security Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor BorrowerCompany’s obligations under the Loan Documents, and (FE) the such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinionopinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Security Document comply with this Agreement; provided further, further that if the foregoing are satisfied (or waived)satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Fundamental Changes. The Borrower shall Parent will not, nor shall will it permit any of its Restricted Subsidiary Subsidiaries to, directly enter into any transaction of merger, consolidation or indirectlyamalgamation, merge, dissolve, or liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation, winding up or dissolution). The Parent will not, nor will it permit any of its Restricted Subsidiaries to, acquire any business or property from, or Dispose Equity Interests in, or be a party to any acquisition of, any Person except for purchases of (whether inventory and other property to be sold or used in the ordinary course of business, Investments and Acquisitions permitted under Section 8.05 and Capital Expenditures. The Parent will not, nor will it permit any of its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or in a series of related transactions) all or substantially all , any part of its assets (business or property, whether now owned or hereafter acquiredacquired (including receivables and leasehold interests, but excluding (x) to obsolete or worn-out property, tools or equipment no longer used or useful in favor its business and (y) any inventory or other property sold or disposed of any Person, except thatin the ordinary course of business and on ordinary business terms). Notwithstanding the foregoing provisions of this Section 8.04:
(a) any Restricted Subsidiary may merge, amalgamate be merged or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate consolidated with or into any other Restricted Subsidiary so long as at the time thereof and after giving effect thereto no Default shall have occurred and be continuing; provided that is not a Loan Party and if any party to such transaction shall be an Obligor, the surviving or continuing entity must be or become an Obligor;
(iib) any Restricted Subsidiary may liquidate sell, lease, transfer or dissolve otherwise dispose of any or change all of its legal form property (upon voluntary liquidation, winding up, dissolution or otherwise) to any other Restricted Subsidiary so long as at the time thereof and after giving effect thereto no Default shall have occurred and be continuing; provided that if such sale is of all or substantially all of the Borrower determines assets of an Obligor, either (A) the acquiring Subsidiary must be or become an Obligor or (B) such sale must be for cash for fair market value, as determined by the Company in good faith that (and, if such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantorfair market value shall exceed $50,000,000, such Guarantor value shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have been determined based upon an adverse effect on the perfection or priority of the Liens granted under the Collateral Documentsindependent valuation);
(c) the Equity Interests in any Restricted Subsidiary may Dispose be sold, transferred or otherwise disposed of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Parent or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a any Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 so long as at the time thereof and 7.03, respectivelyafter giving effect thereto no Default shall have occurred and be continuing;
(d) any Restricted Subsidiary (other than a Borrower) may be liquidated, wound up or dissolved so long as at the time thereof and after giving effect thereto no Event of Default exists or would result therefrom, the Borrower may merge with any other Personshall have occurred and be continuing; provided that if such Restricted Subsidiary is an Obligor, then the Subsidiary to which the assets of such Restricted Subsidiary are transferred upon such liquidation, winding up or dissolution shall be or become an Obligor;
(e) so long as at the time thereof and after giving effect thereto no Default shall have occurred and be continuing, the Parent or any of its Restricted Subsidiaries may sell assets (including Equity Interests issued by any of their respective Restricted Subsidiaries) for fair market value, provided that the aggregate fair market value of all assets sold pursuant to this paragraph (e) during any single fiscal year shall not exceed $300,000,000;
(f) in addition to the sales permitted under the foregoing paragraph (e), the Parent and its Restricted Subsidiaries may (i) sell the Borrower property of, or Equity Interests in, Project Entities (so long as after giving effect to such sale, the Parent shall be in pro forma compliance with the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Personrequirements of Section 8.09 and shall have delivered a calculation, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and detail reasonably satisfactory to the Administrative Agent and the BorrowerAgent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (Deffect from a Financial Officer) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (Fii) consummate other sales so long as the Borrower aggregate fair market value thereof in any single fiscal year shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Actnot exceed $100,000,000;
(eg) the Parent or any Restricted Subsidiary may merge, amalgamate transfer or consolidate with otherwise dispose of any other Person (other than property that is subject to a Customer Contract to the Borrower) customer under such Customer Contract in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied connection with the requirements transfer of Section 6.11 the project to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05such customer; and
(gh) any Restricted Subsidiary FWL and/or Holdco may Dispose be dissolved; provided that 100% of all the economic interests and voting power in the Equity Interests of Holdco or substantially all of its assets (upon voluntary liquidation or otherwise) the Company owned by the Person to be dissolved shall be transferred to the extent that Parent (in the case of a dissolution of FWL or of FWL and Holdco) or FWL (in the case of a dissolution of Holdco) in connection with such Disposition (or series dissolution. Upon the dissolution of related Dispositions) is not prohibited under FWL pursuant to this Section 7.058.04(h), all references in the Loan Documents to “FWL” shall be deemed to have no effect. Upon the dissolution of Holdco pursuant to this Section 8.04(h), all references in the Loan Documents to “Holdco” shall be deemed to have no effect.
Appears in 1 contract
Sources: Credit Agreement (Foster Wheeler Ag)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, mergeMerge, 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, except that:, so long as (other than in the case of clauseclauses (e) and (i)) no Event of Default would result therefrom (or, in the case of any such transaction in connection with a Limited Condition AcquisitionTransaction, no Event of Default exists as of the date the definitive acquisition agreements for such Limited Condition AcquisitionTransaction are entered into or irrevocable notice of redemption, repurchase, defeasance, satisfaction and discharge or repayment of Indebtedness, Disqualified Equity Interests or preferred Equity Interests is given):
(a) any Restricted Subsidiary (or any other Person (other than, except as set forth below, any Single Purpose License Subsidiary)) may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdictionjurisdiction in any State of the United States of America); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, Person or the surviving Person (y) such transaction does not result which shall be a Person incorporated or organized in the Borrower ceasing to be organized under the laws any State of the United States, any State thereof States of America or the District of Columbia and (zColumbia) such transaction does not have an adverse effect in any material respect on shall expressly assume the perfection or priority obligations of the Liens granted under Borrower pursuant to documents reasonably acceptable to the Collateral Documents Administrative Agent or (ii) any one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), provided that when such transaction involves a Loan Party, any Guarantor is merging with another Restricted Subsidiary that is not a Loan Party (A) the Guarantor shall be the continuing or surviving Person except or the continuing or surviving Person shall become a Guarantor, (B) to the extent otherwise constituting an Investment, such Investment must be a permitted by Investment in accordance with Section 7.02, respectively and (C) to the extent constituting a Disposition, such Disposition must be permitted hereunder; provided that (i) a Single Purpose License Subsidiary and any Restricted Subsidiary holding the assets and liabilities of any Station may take any actions otherwise prohibited by this clause (a) to the extent such merger or consolidation occurs in contemplation of, and immediately preceding, a sale, transfer or other disposition (including an Asset Swap Transaction) of such Single Purpose License Subsidiary or other Restricted Subsidiary and (ii) any Restricted Subsidiary may take any actions otherwise prohibited by this clause (a) to the extent necessary to comply with the requirements of Section 6.12, Section 6.14 or Section 6.19;
(b) (i) any Restricted Subsidiary that is not a Loan Party (other than, except as set forth below, any Single Purpose License Subsidiary) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Restricted Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the its Restricted Subsidiaries taken as a whole and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Restricted Subsidiary that is a Guarantor, such Guarantor Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Loan Party, Guarantor unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder); provided that (i) a Single Purpose License Subsidiary and any Restricted Subsidiary holding the assets and liabilities of any Station may take any actions otherwise prohibited by this clause (b) to the extent such transaction shall not have merger or consolidation occurs in contemplation of, and immediately preceding, a sale, transfer or other disposition (including an adverse effect on Asset Swap Transaction) of such Single Purpose License Subsidiary or other Restricted Subsidiary and (ii) any Restricted Subsidiary may take any actions otherwise prohibited by this clause (b) to the perfection extent necessary to comply with the requirements of Section 6.12, Section 6.14 or priority of the Liens granted under the Collateral Documents)Section 6.19;
(c) any Restricted Subsidiary (other than, except as set forth below, any Single Purpose License Subsidiary) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another any Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor or (ii) to the Borrower extent constituting an Investment, such Investment must be permitted by Section 7.02; provided that (i) a Single Purpose License Subsidiary and any Restricted Subsidiary holding the assets and liabilities of any Station may take any actions otherwise prohibited by this clause (c) to the extent such merger or consolidation occurs in contemplation of, and immediately preceding, a sale, transfer or other disposition (including an Asset Swap Transaction) of such Single Purpose License Subsidiary or other Restricted Subsidiary and (ii) any Restricted Subsidiary may take any actions otherwise prohibited by this clause (c) to the extent necessary to comply with the requirements of Section 6.12, Section 6.14 or Section 6.19;
(d) any Restricted Subsidiary (other than, except as set forth below, any Single Purpose License Subsidiary) may merge, amalgamate or consolidate with, or dissolve into, any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the continuing or surviving Person shall, to the extent subject to the terms hereof, have complied with the requirements of Section 6.12 and (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) so long as no Event of Default exists or would result therefrom, the Borrower may merge with any other PersonSection 7.02; provided that (i) a Single Purpose License Subsidiary and any Restricted Subsidiary holding the Borrower shall be assets and liabilities of any Station may take any actions otherwise prohibited by this clause (d) to the continuing or surviving corporation or (ii) if the Person formed by or surviving any extent such merger or consolidation is not the Borrower occurs in contemplation of, and immediately preceding, a sale, transfer or other disposition (including an Asset Swap Transaction) of such Single Purpose License Subsidiary or other Restricted Subsidiary and (ii) any such Person, the “Successor Borrower”), Restricted Subsidiary may take any actions otherwise prohibited by this clause (Ad) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, (C) each Guarantor, unless it is the other party extent necessary to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided furtherthe requirements of Section 6.12, that if the foregoing are satisfied (Section 6.14 or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot ActSection 6.19;
(e) the Borrower and the other Restricted Subsidiaries may consummate the Transactions;
(f) subject to Section 7.04(a)(i), the Borrower or any Restricted Subsidiary may merge, amalgamate or amalgamate, consolidate with (and in the case of any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together dissolve or liquidate) with each of its Restricted Subsidiariesor into another Person, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement engage in an Asset Swap Transaction or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(g) any Restricted Subsidiary may Dispose of all or substantially all of its assets order to effect a Disposition permitted pursuant to Section 7.05 (upon voluntary liquidation other than Section 7.05(d)(A));
(g) any Investment permitted by Section 7.02 may be structured as a merger, consolidation or otherwiseamalgamation; and
(h) to the extent that such Disposition (any Single Purpose License Subsidiary may merge, amalgamate, consolidate with, Dispose all or series substantially all of related Dispositions) is not prohibited under its assets to, or enter into any other transaction described in this Section 7.057.04 with another Single Purpose License Subsidiary.
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Sources: Credit Agreement (Tribune Media Co)
Fundamental Changes. The Borrower shall not, nor shall it permit any Restricted Subsidiary of its Subsidiaries to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its any assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (including, in each case, pursuant to a Division), except that:
(a) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) so long as no Event of Default exists or would result therefrom:
(a) the Borrower may become party to any merger or consolidation of which the Borrower is the surviving entity so long as immediately after giving effect to such transaction no Default shall occur or be continuing and the Borrower can demonstrate pro forma compliance with the financial covenants contained in Section 7.10 of this Agreement immediately after giving effect to such transaction;
(b) subject to clause (a) above, (x) any Subsidiary of the Borrower may be merged into or consolidated with, or may sell, lease or otherwise dispose of any of its assets to, the Borrower or any other Subsidiary of the Borrower, so long as in the case of a merger or consolidation involving the Borrower, the Borrower shall be the continuing surviving or surviving resulting Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (ii) one or more other Restricted Subsidiaries; provided, in the case of this clause (ii), that when such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person except to the extent otherwise constituting an Investment permitted by Section 7.02;
(i) any Restricted Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interest of the Borrower and the Restricted Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower and its Subsidiaries may dispose of assets in the ordinary course of business that are no longer used or to another Restricted Subsidiary; provided that if the transferor useful in such a transaction business or with respect to any business that is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;discontinued; and
(d) so long as no Event of Default exists or would result therefromsubject to clause (a) above, the Borrower and its Subsidiaries may merge with any other Personfrom time to time sell or dispose of assets on arm’s length terms; provided that provided, however, that:
(i) after giving effect to the sale of all assets pursuant to Section 7.04(d), the Borrower shall be the continuing or surviving corporation or and its Subsidiaries together have equity (iidetermined in accordance with GAAP) if the Person formed by or surviving any such merger or consolidation is of not the Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the Laws less than 60% of the United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (B) the Successor Borrower shall expressly assume all the obligations equity of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrowerits Subsidiaries on March 31, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided further, that if the foregoing are satisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; provided further that the Borrower agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent, the Collateral Agent or any Lender through the Administrative Agent that is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(e) any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.02; provided that either (x) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(f) any Restricted Subsidiary may effect a merger, dissolution, liquidation or consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.052023; and
(gii) any Restricted Subsidiary may Dispose the assets sold pursuant to this Section 7.04(d) shall not have contributed revenue, determined in accordance with GAAP, over the period of all or substantially all of its assets (upon voluntary liquidation or otherwise) four fiscal quarters prior to the extent that such Disposition (or series respective sales exceeding 40% of related Dispositions) is not prohibited under Section 7.05the revenue of the Borrower and its Subsidiaries for the four fiscal quarters ended March 31, 2023.
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