Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that: (a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral; (i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders; (c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be; (d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
Appears in 5 contracts
Sources: Credit Agreement (Clear Channel Communications Inc), Credit Agreement (Clear Channel Communications Inc), Credit Agreement (Clear Channel Communications Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, Person and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateralany territory thereof;
(i) any Restricted Subsidiary of the Borrower that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and Party, (ii) any Restricted Subsidiary of the Borrower may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary of the Borrower may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided that, in the case of clause (iv), the Person who receives the assets of any dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.06 or the definition of “Permitted Investments”;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Event of Default (or, to the extent relating to a Permitted Acquisition, no Event of Default under Section 8.01(a) or (f)) exists or would result therefrom and (in each case, in the Parent Borrower shall case of a Permitted Acquisition which is a Limited Condition Acquisition, such determination to be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with subject to Section 1.10), the Parent Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (or, 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 Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement supplements hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) immediately after giving pro forma effect to any such transaction and any related financing transaction, as if such transactions had occurred at the beginning of the applicable four-quarter period, (1) the Successor Borrower would be permitted to incur at least $1.00 of Permitted Ratio Debt, or (2) the Fixed Charge Coverage Ratio for the Borrower would be greater than the Fixed Charge Coverage Ratio for the Borrower immediately prior to such transaction, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty (or in another form reasonably satisfactory to the Administrative Agent) confirmed that its Guarantee Guaranty of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (DE) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement (or in another form reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (EF) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (FG) the Parent Successor Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Event of Default (or, to the extent relating to a Permitted Acquisition, no Event of Default under Section 8.01(a) or (f)) exists or would result therefrom, Holdings may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) a new Holdings shall be the continuing or surviving Person or (B) if (i) the Person formed by or surviving any such merger or consolidation is not a Holdings entity, (ii) a Holdings entity is not the Person into which the applicable previous Holdings has been liquidated or (iii) in connection with a Disposition of all or substantially all of a Holdings entity’s assets, the Person that is the transferee of such assets is not a Holdings entity (any such Person, a “Successor Holdings”), (1) the Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (3) if reasonably requested by the Administrative Agent, the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, the applicable Holdings under this Agreement;
(f) any Restricted Subsidiary may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other Investment permitted pursuant to Section 7.06; provided, that, solely in the case of a merger or consolidation involving a Loan Party, no Event of Default (or, to the extent relating to a Permitted Acquisition, no Event of Default under Section 8.01(a) or (f)) exists or would result therefrom; provided, further, that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 and Article XII;
(g) a merger, 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
(h) the Loan Parties and the Restricted Subsidiaries may consummate the Transactions.
Appears in 4 contracts
Sources: Credit Agreement (ATD Corp), Incremental Amendment (American Tire Distributors Holdings, Inc.), Incremental Amendment (ATD Corp)
Fundamental Changes. Merge, dissolve, liquidate, The Borrower may not (1) consolidate or merge with or into another Person, or Dispose of Person (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any not the Borrower is the surviving Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that or (x2) the Parent Borrower shall be the continuing sell, assign, transfer, convey or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose otherwise dispose of 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 (upon voluntary liquidation or otherwise) including pursuant to the Parent Borrower or another Restricted Subsidiarya Division); provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;unless:
(da) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that either: (i) the Parent Borrower shall be is the continuing or surviving corporation Person; 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, conveyance or other disposition has been made is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity a Person organized or existing under the laws of the United States, any state thereofof the United States, the District of Columbia or any territory thereofthereof (the Borrower or such Person, as the case may be, being herein called the “Successor Borrower”);
(Bb) the Successor Parent Borrower shall expressly assume (if other than the Borrower) assumes all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower it is a party pursuant by executing a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(c) immediately after such transaction no Default or Event of Default exists;
(d) [reserved];
(e) each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guarantee in connection with such transaction and (y) any party to any such consolidation or merger that does not survive or become the Successor Borrower) shall have delivered a supplement hereto joinder or thereto other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guarantee; and
(Cf) each Guarantor, unless it is Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the other Security Agreement in connection with such transaction and (y) 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 Guaranty confirmed that its Guarantee of the Obligations shall apply Security Agreement or another document or instrument in form reasonably satisfactory to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed Administrative Agent affirmed that its obligations thereunder shall apply to its Guarantee as confirmed pursuant to clause (e) above; provided that, for the Successor Parent Borrower’s obligations under purposes of this AgreementSection 8.6 only, neither a Music Publishing Sale nor a Recorded Music Sale will be deemed to be a sale, assignment, transfer, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole. For the avoidance of doubt, (E1) each mortgagor the Borrower may therefore consummate a Music Publishing Sale without complying with this Section 8.6 notwithstanding anything to the contrary in this Section 8.6, (2) the Borrower may therefore consummate a Recorded Music Sale 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 Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement with or into the Borrower or any Collateral Document comply with this Agreement; providedRestricted Subsidiary), furtherthe determination of whether such sale, that if 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 are satisfiedclause (c), (x) any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its properties and assets to the Successor Parent Borrower will succeed to, or to another Restricted Subsidiary and be substituted for, (y) the Parent Borrower under this Agreement;may merge with an Affiliate incorporated solely for the purpose of reincorporating the Borrower in another state of the United States.
Appears in 4 contracts
Sources: Incremental Commitment Amendment (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.), Incremental Commitment Amendment (Warner Music Group Corp.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) to the extent constituting an Investment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Subsidiary which is not a Loan PartyParty in accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.02 or (ii) for any other purpose; provided that (A) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11; and (B) in the case of subclause (ii) only, if (1) the merger or consolidation involves a Guarantor and such Guarantor is not the surviving Person, the surviving Restricted Subsidiary shall expressly assume all the obligations of such Guarantor under this Agreement and the other Loan Documents to which the Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (2) the Secured Leverage Ratio for the Test Period immediately preceding such merger or consolidation calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10 is less than or equal to 4.5 to 1.0;
(f) the Merger may be consummated; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 4 contracts
Sources: Credit Agreement (Avaya Inc), Credit Agreement (Avaya Inc), Credit Agreement (Avaya Inc)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Restricted Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (ai) Holdings or any Restricted Subsidiary Person may merge into or consolidate with the Parent Borrower (including in a merger, the purpose of transaction in which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower is the surviving entity or (y) the other party is the surviving entity of such merger (in such event, such surviving entity shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent “Successor Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i”) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity is organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all assumes the Borrower’s obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto thereto, as applicable, in form and substance reasonably satisfactory to the Administrative Agent, Agent and (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Collateral Agreement and, if reasonably requested by the Administrative Agent, each other Security Agreement Document to which such Subsidiary Loan Party is a party confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counselit being understood that, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing conditions in clauses (A) through (C) are satisfied, then the Successor Parent Borrower will automatically succeed to, and be substituted for, the Parent Borrower under this Agreement;), (ii) any Person (other than the Borrower) may merge into or consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary and, if any party to such merger or consolidation is a Subsidiary Loan Party, the surviving entity is or becomes a Subsidiary Loan Party, (iii) any Restricted Subsidiary may merge into or consolidate with any Person (other than the Borrower) in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Restricted Subsidiary, and (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution or change in legal form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that any such merger or consolidation involving a Person that is not a wholly-owned Restricted Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any Restricted Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Restricted Subsidiaries on the Effective Date and businesses reasonably related, complementary or ancillary thereto or a reasonable extension or expansion thereof as determined by the Borrower in good faith.
Appears in 4 contracts
Sources: Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary Loan Party to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (ai) Holdings or any Restricted Subsidiary may merge or consolidate with into the Parent Borrower in a transaction in which the Borrower is the surviving corporation, (including ii) the Borrower may merge into a merger, wholly owned Subsidiary of the Borrower for the sole purpose of which is to reorganize effecting a change in the Parent Borrower into a new jurisdiction); jurisdiction of organization of the Borrower, provided that (xA) the Parent Borrower shall be the continuing or surviving Personsuch Subsidiary is not a Foreign Subsidiary, (yB) such merger or consolidation does not result Subsidiary is a corporation organized for the sole purpose of effecting a change in the Parent Borrower ceasing to be incorporated under the Laws jurisdiction of organization of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, prior to the consummation of such merger, owns no Equity Interests in any entity, (C) after giving effect to such merger or consolidationmerger, such Subsidiary shall be the direct parent surviving entity and, for purposes of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents Documents, shall be deemed to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory be the "Borrower" and shall succeed to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party rights and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto Documents, and such Subsidiary shall enter into an instrument in form and substance reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless Agent stating that it is has become the "Borrower" and has succeeded to the rights and obligations of the Borrower under this Agreement and the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this AgreementLoan Documents, (D) each Loan Party, unless it is the other party immediately after giving effect to such merger or consolidationmerger, shall have by each Person that was a supplement to each Security Agreement confirmed that its obligations thereunder shall apply shareholder of the Borrower prior to the Successor Parent Borrower’s obligations under this Agreementconsummation of such merger shall become a shareholder of such Subsidiary, and each such Person shall own Equity Interests in the reorganized Borrower having an aggregate voting power equal to those Equity Interests in the Borrower held by such Person prior to such merger, (E) each mortgagor the Administrative Agent shall have received notice of such merger 30 days prior to the consummation of such merger, (F) prior to the consummation of such merger, the Borrower shall have taken all actions necessary pursuant to Section 5.13 to cause the Collateral and Guarantee Requirement to be and remain satisfied after giving effect to the merger and (G) the Borrower and such Subsidiary shall deliver all legal opinions relating to the matters set forth in the preceding clauses (A) through (F) as may be reasonably requested by the Administrative Agent, (iii) any Subsidiary Loan Party may merge into any Subsidiary Loan Party in a Mortgaged Propertytransaction in which the surviving entity is a Subsidiary Loan Party, unless (iv) the Borrower may permit another Person to merge into it in order to effect a Permitted Acquisition in which the Borrower is the surviving entity, (v) a Subsidiary Loan Party may merge into another Person, or may permit another Person to merge into it, in order to effect a Permitted Acquisition in which the surviving entity is a Subsidiary Loan Party and (vi) any Subsidiary Loan Party (other party than a License 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; provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger or consolidationshall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, shall have by an amendment to or restatement and will not permit any of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed Subsidiary Loan Parties to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and be substituted for, the Parent Borrower under this Agreement;Subsidiary Loan Parties on the Effective Date and businesses reasonably related thereto.
Appears in 4 contracts
Sources: Amendment and Restatement Agreement (Cumulus Media Inc), Amendment and Restatement Agreement (Cumulus Media Inc), Credit Agreement (Cumulus Media Inc)
Fundamental Changes. Merge, dissolve, liquidate, (a) No Consolidated Entity will merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries if at the time of such merger or consolidation other than the Parent Borrower and, thereof and immediately after giving effect to such merger or consolidation, the direct parent of the Parent Borrower thereto no Default shall expressly assume all the obligations of Holdings under this Agreement have occurred and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
continuing (i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that in a transaction in which the Parent Borrower is not a Loan Party and the surviving corporation, (ii) any Restricted Subsidiary may merge into any Wholly-Owned Subsidiary in a transaction in which the surviving entity is a Wholly-Owned Subsidiary and, if any party to such merger is a Loan Party, is or becomes a Loan Party, (iii) any Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if Borrower, is not materially disadvantageous to the Lenders;
(c) Lenders and could not reasonably be expected to have a Material Adverse Effect, provided that if such Subsidiary is a Guarantor, any Restricted Subsidiary may Dispose assets or business not otherwise disposed of all or substantially all transferred in accordance with Section 6.06, or, in the case of its assets (upon voluntary liquidation any such business, discontinued, shall be transferred to, or otherwise) to otherwise owned or conducted by, the Parent Borrower or another Restricted Subsidiarya Guarantor after giving effect to such liquidation or dissolution; provided further that no Subsidiary Borrower may be liquidated or dissolved if the transferor any Borrowing or Revolving Credit Exposure attributable to such entity is outstanding at such time, (iv) any Foreign Subsidiary may merge into any other Foreign Subsidiary that is a Wholly-Owned Subsidiary in such a transaction in which a Foreign Subsidiary that is a U.S. Loan Party or Wholly-Owned Subsidiary is the surviving corporation, (v) any Wholly-Owned Subsidiary may merge into any Person in order to consummate a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (iPermitted Acquisition permitted by Section 6.04(e) so long as no Default exists or would result therefrom and after giving effect thereto the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for Person surviving such merger or consolidation is a Subsidiary and (vi) any Consolidated Entity may effect the closure of a division in accordance with Section 1.10, the Parent Borrower may merge with such Consolidated Entity.
(b) No Consolidated Entity will engage to any material extent in any business other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws than businesses of the United States, any state thereof, type conducted by the District Consolidated Entities on the date of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations execution of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;related thereto.
Appears in 4 contracts
Sources: Credit Agreement (Charles River Laboratories International Inc), Credit Agreement (Charles River Laboratories International Inc), Credit Agreement (Charles River Laboratories International Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Prior to a Trigger Event, (i) Parent may merge with Holdings (it being understood that either entity may be the continuing or surviving Person), (ii) Parent may merge with Topco (it being understood that either entity may be the continuing or surviving Person), (iii) Topco may merge with Holdings (it being understood that either entity may be the continuing or surviving Person), (iv) any of Parent, Topco or Holdings may merge with any newly formed Subsidiary Guarantor that is a direct or indirect parent of the Lead Borrower and (v) Parent, Topco or Holdings may liquidate or dissolve; provided that, in each case, (x) after giving effect to any such transaction, at least one of Parent, Topco, Holdings or such newly formed Subsidiary Guarantor shall remain as an immediate parent of the Lead Borrower, (y) all of the Equity Interests of the LifeCell Group then held by Parent and its Subsidiaries shall be held directly or indirectly by Parent, Topco, Holdings or such newly formed Subsidiary Guarantor and (z) the Company determines in good faith that such action is in the best interests of the Company and its Subsidiaries and is not materially disadvantageous to the Lenders;
(b) any Restricted Subsidiary may merge or consolidate with (i) the Parent Lead Borrower (including a merger, merger the purpose of which is to reorganize the Parent Borrower into in a new jurisdictionState within the United States); provided that (x) the Parent Lead Borrower shall be the continuing or surviving Person, (y) after giving effect to any such merger transaction, at least one of Parent, Topco or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws Holdings shall remain as an immediate parent of the United States, any state thereof or the District of Columbia Lead Borrower and (z) in the case all of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the LifeCell Group then held by Parent Borrower and its Subsidiaries shall be pledged as Collateralheld directly or indirectly by Parent, Topco, Holdings or any Subsidiary Guarantor formed in accordance with Section 7.04(a) that is a direct or indirect parent of the Lead Borrower, or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and Party, (ii) (A) any Subsidiary (other than Holdings or Topco) may liquidate or dissolve, or (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form form, in each case, if in either case, the Parent Borrower Company determines in good faith that such action is in the best interests of the Parent Borrower Company and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders and (iii) the Company may change its legal form if it determines in good faith that such action is in the best interests of the Company and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(cd) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (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 PartyParty in accordance with Section 7.02 and Section 7.03, as the case may berespectively;
(d) (ie) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Lead Borrower may merge with any other Person; provided that (i) the Parent Lead Borrower shall be the continuing or surviving corporation corporation;
(f) so long as no Default exists or (ii) if would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that the Person formed by continuing or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower Person shall be an entity organized or existing under the laws a Restricted Subsidiary, which together with each of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidationits Restricted Subsidiaries, shall have by a supplement to complied with the Guaranty confirmed that its Guarantee requirements of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, Section 6.11;
(D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (Fg) the Parent Borrower shall have delivered to Acquisition and the Administrative Agent an officer’s certificate and an opinion of counselLifeCell Restructuring may be consummated; and
(h) so long as no Default exists or would result therefrom, each stating that such merger a merger, dissolution, liquidation, consolidation or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfiedDisposition, the Successor Parent Borrower will succeed topurpose of which is to effect a Disposition permitted pursuant to Section 7.05, and may be substituted for, the Parent Borrower under this Agreement;effected.
Appears in 4 contracts
Sources: Credit Agreement (Acelity L.P. Inc.), Credit Agreement (Acelity L.P. Inc.), Credit Agreement (Kinetic Concepts Inc)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into or wind up or convert into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge merge, consolidate or consolidate amalgamate with or into, or convert or wind up into the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger merger, consolidation, amalgamation, conversion or consolidation winding up does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia Columbia, and (z) in the case of a merger merger, consolidation or consolidation amalgamation of Holdings with and into or converting or winding up into the Parent Borrower, Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger merger, consolidation, amalgamation, conversion or consolidation winding up other than the Parent Borrower and, after giving effect to such merger merger, consolidation, amalgamation, conversion or consolidationwinding up, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, consolidate or consolidate amalgamate with or into or convert or wind up into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and Party, (ii) any Restricted Subsidiary may liquidate merge, consolidate or amalgamate with or into or convert or wind up into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger, consolidation, amalgamation, conversion or winding up the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary may wind up, liquidate, convert or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) through (iv) of this paragraph (b), that (A) no Event of Default shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Loan Party, as the case may beParty in accordance with Section 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 9.5;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10exist immediately after giving effect thereto, the Parent Borrower may merge merge, consolidate or amalgamate with or into, or convert into, any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger merger, consolidation, amalgamation or consolidation conversion is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, consolidation, amalgamation or consolidation conversion and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default would exist immediately after giving effect thereto, any Restricted Subsidiary may merge, consolidate, amalgamate with or into, or convert or wind up into any other Person in order to effect an Investment permitted pursuant to Section 9.2 (other than Section 9.2(e)); provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the applicable requirements of Sections 8.11, 8.12 and 8.13;
(f) the Transaction may be consummated; and
(g) so long as no Default would exist immediately after giving effect thereto, a merger, dissolution, liquidation, consolidation, amalgamation, conversion, winding up or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 9.5 (other than Section 9.5(e)).
Appears in 3 contracts
Sources: Abl Credit Agreement (99 Cents Only Stores LLC), Abl Credit Agreement (99 Cents Only Stores LLC), Credit Agreement (99 Cents Only Stores)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall not be an obligor in respect of any Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iiiv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided, that (x) in the case of clauses (ii) through (iv) of this paragraph (b), (A) no Event of Default shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party and (y) in the case of clause (iii) of this paragraph (b), the Borrower shall provide not less than ten (10) days’ prior written notice to the Administrative Agent of such proposed change;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Loan Party, as the case may beParty in accordance with Section 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 9.5;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and Agreement, (F) the Parent Administrative Agent shall have made such filings and received such documents and agreements as may be reasonably required by the Administrative Agent to continue the perfection of its Liens on the Collateral in accordance with the Loan Documents and (G) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement and providing for other customary opinions reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, Holdings may merge or consolidate with any other Person; provided that (A) Holdings shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”)
(A) the Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof, or the District of Columbia, (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower Holdings will succeed to, and be substituted for, the Parent Borrower Holdings under this Agreement;
(f) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 9.2 (other than Section 9.2(e)); provided that 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 Sections 8.11, 8.12 and 8.13;
(g) [reserved]; and
(h) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 9.5 (other than Section 9.5(e)).
Appears in 3 contracts
Sources: Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that, so long as no Default exists or Dispose of would result therefrom, (whether in one transaction i) any Person may merge with or into, consolidate with or amalgamate with the Borrower in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or transaction in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with which the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (yii) such merger any Person (other than Parent Guarantor) may merge with or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United Statesinto, consolidate with or amalgamate with any state thereof or the District of Columbia and Subsidiary (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger Borrower) in a transaction in which the continuing or consolidation, the direct parent surviving Person shall be a Subsidiary of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent andBorrower, for the avoidance of doubt, the Equity Interests (iii) any Subsidiary of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge with or into, consolidate with or into amalgamate with any other Restricted Person in order to consummate a Disposition permitted by Section 7.05 or an Investment; (iv) any Subsidiary of the Borrower may merge into, the Parent Guarantor, the Borrower that is not a Loan Party or any other Subsidiary of the Borrower; and (iiv) any Restricted Subsidiary of the Borrower may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
. For the avoidance of doubt, in connection with an internal restructuring, (cx) any Restricted Subsidiary DOC OP may Dispose of merge, consolidate or amalgamate with or into, or distribute or transfer all or substantially all of its assets to, DOC or the Borrower and (upon voluntary liquidation y) DOC may merge, consolidate or otherwise) to the Parent Borrower amalgamate with or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party into, or a Foreign Loan Party, then the transferee must be a U.S. Loan Party distribute or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists transfer all or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10substantially all its assets to, the Parent Borrower may merge with any other Person; provided that (i) Borrower, it being understood and agreed that, in the Parent Borrower shall be event the continuing successor or surviving corporation or (ii) if the Person formed by or surviving transferee entity in any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall transaction expressly assume all assumes the obligations of the Parent Borrower DOC OP under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory any DOC Debt, such assumption shall be permitted notwithstanding anything to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, contrary in this Article VII and shall have by not constitute a supplement to the Guaranty confirmed that its Guarantee new incurrence of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor Indebtedness for purposes of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this AgreementSection 7.03; provided, further, that if the foregoing are satisfiedprovided that, the Successor Parent Borrower will succeed to, and be substituted for, Loan Parties shall provide such customary “know your customer” documentation as the Parent Borrower under this Agreement;Lenders may reasonably require in connection with such transfer.
Appears in 3 contracts
Sources: Credit Agreement (Healthpeak Properties, Inc.), Term Loan Agreement (Healthpeak Properties, Inc.), Credit Agreement (Healthpeak Properties, Inc.)
Fundamental Changes. MergeThe Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, Person or Dispose of (whether reorganize itself in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Personnon-U.S. jurisdiction, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a mergeri) any Loan Party, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower Loan Party shall be the continuing or surviving Person, Person or (yii) such merger any one or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation more other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralSubsidiaries;
(ib) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower Borrower, the Guarantor or another Restricted Subsidiary; provided ;
(c) Investments that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must are permitted under Section 7.02 shall be a U.S. Loan Party or Foreign Loan Party, as the case may bepermitted under this Section 7.04;
(d) [reserved]; and
(ie) so long as no Default exists any Restricted Subsidiary or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge or consolidate with any other PersonPerson that is not a Subsidiary in connection with an Investment permitted under Section 7.02; provided that (i) in the Parent case of a merger or consolidation involving the Borrower, (A) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger or consolidation is not the Parent a Borrower (any such Person, the “Successor Parent Borrower”), (A1) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United StatesU.S., any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B2) the Successor Parent Borrower shall expressly assume all of the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent and (3) the Guarantor shall expressly reaffirm its Guarantee of the Obligations pursuant to a supplement in form and substance reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is ; provided that the Borrower agrees to provide any documentation and other party to such merger or consolidation, information about the Successor Borrower as shall have been reasonably requested in writing by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to any Lender through the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation and (ii) in the case of any merger or consolidation involving the Guarantor and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if a Restricted Subsidiary and not involving the foregoing are satisfiedBorrower, the Successor Parent Borrower will succeed to, and continuing or surviving Person must be substituted for, the Parent Borrower under this Agreement;Guarantor (or become the Guarantor upon the consummation thereof).
Appears in 3 contracts
Sources: Credit Agreement (Safehold Inc.), Credit Agreement (Safehold Inc.), Credit Agreement (Safehold Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a) Holdings or any Restricted Subsidiary of the Parent Borrower may merge merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralColumbia;
(i) any Restricted Subsidiary that is not a Non-Loan Party (other than a Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iiiv) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), no Event of Default would result therefrom;
(c) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign Loan Party(ii) to the extent constituting an Investment, as the case may besuch Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment;
(d) (i) so long as no Default exists has occurred and is continuing or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent any Borrower may merge or consolidate with any other Person; provided that (i) in the case of a merger or consolidation involving the Parent Borrower, the Parent Borrower shall be the continuing or surviving corporation and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving the Parent Borrower, if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”) or in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, if the Person formed by or surviving any such merger or consolidation is not such Borrower (any such Person, the “Successor Subsidiary Borrower” and each of the Successor Parent Borrower and the Successor Subsidiary Borrowers, the “Successor Borrower”), (A) in the case of a merger involving the Parent Borrower, the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofthereof and in the case of a merger involving the Japanese Subsidiary Borrower or the Swiss Subsidiary Borrower, the Successor Subsidiary Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent such Borrower under this Agreement and the other Loan Credit Documents to which the Parent such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Borrower, each Swiss Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Swiss Guaranty confirmed that its Guarantee guarantee of the Swiss Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, and (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent such Borrower under this Agreement;
(e) so long as no Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xix)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11 to the extent required under the Collateral and Guarantee Requirement; and
(f) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 3 contracts
Sources: Credit Agreement (Quintiles IMS Holdings, Inc.), Credit Agreement (Quintiles IMS Holdings, Inc.), Credit Agreement (Quintiles IMS Holdings, Inc.)
Fundamental Changes. Merge(a) Neither Holdings nor the Borrower will, dissolvenor will they permit any of their Restricted Subsidiaries to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (ai) Holdings or any Restricted Subsidiary Person may merge into or consolidate with the Parent Borrower (including in a merger, transaction in which the purpose of which Borrower is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof entity or the District of Columbia and surviving entity (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), ) (A) the Successor Parent Borrower shall be an entity is organized or existing under the laws of the United States, any state thereof, the District States of Columbia or any territory thereofAmerica, (B) expressly assumes the Successor Parent Borrower shall expressly assume all the Borrower’s obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Collateral Agreement (and, if reasonably requested by the Administrative Agent, each other applicable Security Agreement Document) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, Agreement and (ED) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, provided that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;, (ii) any Person (other than Holdings and the Borrower) may merge into or consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary and, if any party to such merger or consolidation is a Subsidiary Loan Party, is a Subsidiary Loan Party, (iii) any Restricted Subsidiary other than the Borrower may merge into or consolidate with any Person in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Restricted Subsidiary, (iv) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that any such merger or consolidation involving a Person that is not a wholly owned Restricted Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04, and (v) the Borrower or any Restricted Subsidiary may engage in a merger, consolidation, dissolution or liquidation, the purpose of which is to effect a disposition permitted pursuant to Section 6.05.
(b) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary to, engage to any material extent in any business other than businesses of the type to be conducted by the Borrower and the Restricted Subsidiaries as described in the Form 10 and businesses reasonably related, incidental or ancillary thereto.
(c) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, Holdings will not (i) engage in any business or activity other than the ownership of all the outstanding Equity Interests of the Borrower and activities incidental thereto and compliance with its obligations under the Loan Documents, (ii) own or acquire any assets (other than Equity Interests of the Borrower, cash and Permitted Investments), (iii) incur any liabilities (other than liabilities under the Loan Documents, liabilities imposed by law, including tax liabilities, and other liabilities incidental to its existence and permitted business and activities) or (iv) incur or permit to exist any Liens on any of its assets (other than the Liens created by the Loan Documents and Liens imposed by law).
Appears in 3 contracts
Sources: Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.)
Fundamental Changes. Mergeof the Credit Agreement is hereby amended by inserting the following text immediately preceding the period (“.”) at the end of said Section: “; provided, that the Borrower may, or may cause its Subsidiaries to, liquidate, wind up, dissolve, liquidate, consolidate deregister or take similar action with respect to (i) any of the Foreign Subsidiaries listed on Schedule 7.04(a) (Dormant Foreign Subsidiaries) or into another Person, or Dispose (ii) any Permitted Restructured Foreign Subsidiary that the Administrative Agent approves in writing (such approval shall be subject to the Administrative Agent’s receipt and review of (whether in one transaction x) a certificate from a Responsible Officer of the Borrower certifying that (A) such Permitted Restructured Foreign Subsidiary meets the definition of “Permitted Restructured Foreign Subsidiary”, (B) the contemplated liquidation, windup, dissolution, deregistration or in a series similar action of transactionssuch Permitted Restructured Foreign Subsidiary is necessary for or beneficial to (taking into account all relevant factors) all or the Borrower and its Subsidiaries, (C) substantially all of its the assets (whether now owned of such Permitted Restructured Foreign Subsidiary have been transferred or hereafter acquired) to or will be transferred in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate connection with the Parent contemplated liquidation, wind up, dissolution, deregistration or similar action to the Borrower or a Subsidiary of the Borrower (including or that such assets have been otherwise Disposed (or will be Disposed in connection with the contemplated liquidation, wind up, dissolution, deregistration or similar action) pursuant to a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (xDisposition permitted by this Agreement) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (zD) in the case no Default or Event of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings Default shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, occurred and be continuing both before and immediately after giving effect to such merger liquidation, wind up, dissolution, deregistration or consolidationsimilar action and (y) any other documentation or information, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto financial or thereto in form reasonably satisfactory to otherwise, that the Administrative Agent andreasonably requests, for the avoidance of doubtincluding, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines without limitation, calculations in good faith reasonable detail supporting Borrower’s certification that such action is in Permitted Restructured Foreign Subsidiary meets the best interests definition of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted “Permitted Restructured Foreign Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if in connection with strategic tax planning by the foregoing are satisfiedBorrower and its Subsidiaries, notwithstanding anything to the contrary in this Agreement, but subject to each Loan Party’s obligations under Section 6.14 and Section 6.20 of this Agreement to the extent applicable, (i) the Borrower may, or may cause its Subsidiaries to, restructure the ownership of those Foreign Subsidiaries identified on Schedule 7.04(b)(Restructured Foreign Subsidiaries), including in a manner that may result in one or more of such Foreign Subsidiaries becoming Subsidiaries of other Foreign Subsidiaries of the Borrower and no longer being owned directly by a Loan Party, and (ii) with the prior written consent of the Administrative Agent, the Successor Parent Borrower will succeed may, or may cause its Subsidiaries to, restructure the ownership of Permitted Restructured Foreign Subsidiaries, including in a manner that may result in such Permitted Restructured Foreign Subsidiaries becoming subsidiaries of other Foreign Subsidiaries of Borrower and no longer being owned directly by a Loan Party, subject to the Administrative Agent’s receipt and review of (x) a certificate from a responsible officer of the Borrower confirming that (1) each entity subject to the proposed restructuring meets the definition of “Permitted Restructured Foreign Subsidiary”, and (2) no Default or Event of Default shall have occurred and be substituted forcontinuing both before and immediately after giving effect to such restructuring, and (y) any other documentation or information, financial or otherwise, that the Administrative Agent reasonably requests, including, without limitation, calculations in reasonable detail supporting Borrower’s certification that such Permitted Restructured Foreign Subsidiary meets the definition of “Permitted Restructured Foreign Subsidiary”. In accordance and compliance with Section 9.11(b) (Collateral and Guaranty Matters), the Parent Borrower under Administrative Agent is authorized, without further action or consent of the Lenders or L/C Issuer, to release any Pledged Stock of any Foreign Subsidiary set forth on Schedule 7.04(a) or Schedule 7.04(b), together with each Subsidiary of such Foreign Subsidiary, and any Permitted Restructured Foreign Subsidiary in connection with any liquidation, wind up, dissolution, deregistration or similar action or restructuring permitted pursuant to this Agreement;Section 7.04 (Fundamental Changes) upon the occurrence of such event or, to the extent reasonably necessary to facilitate the occurrence of such contemplated event, prior to such event, as well as in connection with any Permitted Intercompany Merger.”.
Appears in 3 contracts
Sources: Credit Agreement (Jarden Corp), Credit Agreement (Jarden Corp), Credit Agreement (Jarden Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, no Existing 2016 Notes shall remain outstanding at the time of such merger or consolidation, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Non-Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Non- Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted (provided that the surviving Person shall be a Loan Party) and (iiiv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) to the extent constituting an Investment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Subsidiary which is not a Loan PartyParty in accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate certificate, if requested by the Administrative Agent, and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any Person other than the Borrower (i) in order to effect an Investment permitted pursuant to Section 7.02 or (ii) for any other purpose; provided that (A) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11; and (B) in the case of subclause (ii) only, (1) if the merger or consolidation involves a Guarantor and such Guarantor is not the surviving Person, the surviving Restricted Subsidiary shall expressly assume all the obligations of such Guarantor under this Agreement and the other Loan Documents to which the Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (2) the Borrower shall be in compliance with the financial covenant set forth in Article VIII to the extent then applicable (calculated on a Pro Forma Basis); and
(f) a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 3 contracts
Sources: Credit Agreement, Amendment and Restatement Agreement (Sabre Corp), Amendment and Restatement Agreement (Sabre Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, therefrom,
(i) the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, and (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
Appears in 3 contracts
Sources: Credit Agreement (Clear Channel Communications Inc), Credit Agreement (CC Media Holdings Inc), Credit Agreement (C C Media Holdings Inc)
Fundamental Changes. MergeThe Parent and the Borrower will not, dissolveand will not permit any other Loan Party to, liquidate, either (x) merge into or consolidate with or into another any other Person, or Dispose of permit any other Person to merge into or consolidate with it, or (whether in one transaction y) liquidate or in a series of transactions) all or substantially all of its assets (whether now owned 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:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into the Parent, the Borrower or any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if in a transaction in which the Parent Borrower determines in good faith that such action is in Parent, the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and , is the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Personsurviving entity; provided that (i) the Parent and the Borrower shall be the continuing will not merge with or surviving corporation or into each other and (ii) if the Parent or the Borrower merges with any other Loan Party, the Parent or the Borrower, as the case may be, must be the surviving entity; and
(b) any Person may merge or consolidate with or into the Parent, the Borrower or any other Loan Party in a transaction in which the Parent, the Borrower or such Loan Party, as the case may be, is not the surviving entity; provided that (i)(A) in the case of a Person merging or consolidating with or into the Borrower, the Person formed by or surviving any such merger or consolidation shall be a corporation organized or existing under the laws of the jurisdiction in which the Borrower is not organized and (B) in the case of a Person merging or consolidating with or into the Parent Borrower (or any such Personother Loan Party other than the Borrower, the “Successor Parent Borrower”), (A) the Successor Parent Borrower Person formed by or surviving any merger or consolidation shall be an entity a corporation organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofthereof or, in the case of a merger or consolidation involving the Parent, the laws of the jurisdiction in which the Parent is organized (such Person being herein referred to as the “Successor Entity”), (Bii) the Successor Parent Borrower Entity shall expressly assume all the obligations of the Parent Parent, the Borrower or the applicable Loan Party, as the case may be, under this Agreement and the other Loan Documents to which the Parent Parent, the Borrower or such Loan Party, as applicable, is a party party, pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (Ciii) if such merger or consolidation involves the Borrower, then each Guarantor, unless it is the other party to such merger or consolidation, shall have (by a supplement to the Guaranty Agreement) confirmed that its Guarantee of the Obligations shall apply to all of the Successor Parent BorrowerEntity’s obligations under this Agreement, (Div) each Loan Partyif requested by the Administrative Agent, unless it is the other party to such merger or consolidation, Administrative Agent shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor received an opinion 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 counsel reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply Agent to the effect that the applicable Loan Documents are legal, valid, binding and enforceable obligations of the Successor Parent Borrower’s obligations under this Agreement Entity and (Fv) this clause (b) shall not be construed to permit the Borrower to merge with or into the Parent. In the case of any such merger of the Parent or the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply in accordance with this Agreement; provided, further, that if the foregoing are satisfiedclause (b) above, the Successor Entity shall be deemed to be the Parent Borrower will succeed toor the Borrower, and be substituted foras applicable, for all purposes of the Loan Documents. Notwithstanding anything to the contrary herein, the Parent will not engage, and will not permit the Borrower under this Agreement;to engage, in any transaction that would reduce the percentage of Equity Interests owned by the Parent in the Borrower, except for (x) sales, transfers and other disposals of such Equity Interests to directors, officers or employees of the Borrower pursuant to any employee stock ownership plan or similar plan for the benefit of directors, officers or employees of the Borrower and (y) the issuance of such Equity Interests as consideration for any acquisition from a third party; provided that following any such issuance of Equity Interests to a third party, no Change in Control shall have occurred and the majority of the seats (other than vacant seats) on the board of directors of the Borrower shall be occupied by Persons nominated by the board of directors of the Borrower or the Parent or appointed by directors so nominated.
Appears in 3 contracts
Sources: Term Loan Agreement (Willis Group Holdings PLC), Credit Agreement (Willis Group Holdings PLC), Credit Agreement and Guaranty Agreement (Willis Group Holdings PLC)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of 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) Holdings or any Restricted Subsidiary may merge or consolidate with (i) the Parent Lead Borrower (including a merger, the purpose of which is to reorganize the Parent Lead Borrower into a new jurisdiction); provided , provided, that (x) the Parent Lead Borrower shall be the continuing or surviving Person, (y) such merger Person or consolidation does not result in the Parent Borrower ceasing to surviving Person shall be incorporated a Person organized and existing under the Laws laws of the United States, States or any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party Lead Borrower pursuant to a supplement hereto or thereto in form documents reasonably satisfactory acceptable to the Administrative Agent andor (ii) any one or more other Restricted Subsidiaries, for provided, that when any Guarantor is merging with another Restricted Subsidiary, (A) the avoidance of doubt, the Equity Interests of the Parent Borrower Guarantor shall be pledged as Collateralthe continuing or surviving 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 in accordance with Sections 7.02 and 7.03;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Lead Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the ABL Obligations is not adversely affected thereby) change its legal form if the Parent Lead Borrower determines in good faith that such action is in the best interests interest of the Parent Lead Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the LendersLenders (it being understood that in the case of any dissolution of a Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Subsidiary that is a Guarantor; and in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Lead Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan PartyGuarantor, then (i) the transferee must either be the Lead Borrower or a Guarantor or (ii) to the extent constituting an Investment, such Investment must be a U.S. permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party or Foreign Loan Partyin accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower any Restricted Subsidiary may merge with any other PersonPerson in order to effect an Investment permitted pursuant to Section 7.02; provided provided, that (i) the Parent Borrower shall be the continuing or surviving corporation Person shall be a Restricted Subsidiary, which together with each of its Subsidiaries, shall have complied with the requirements of Section 6.12 or (ii) if to the Person formed by extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02; and
(e) a merger, dissolution, liquidation, consolidation or surviving any such merger or consolidation is not the Parent Borrower (any such PersonDisposition, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws purpose of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents which is to which the Parent Borrower is effect a party Disposition permitted pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Section 7.05 (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;than Section 7.05(f)(A)).
Appears in 3 contracts
Sources: Abl Credit Agreement (GMS Inc.), Abl Credit Agreement (GMS Inc.), Abl Credit Agreement (GMS Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) to the extent constituting an Investment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Subsidiary which is not a Loan PartyParty in accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.02 or (ii) for any other purpose; provided that (A) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11; and (B) in the case of subclause (ii) only, if (1) the merger or consolidation involves a Guarantor and such Guarantor is not the surviving Person, the surviving Restricted Subsidiary shall expressly assume all the obligations of such Guarantor under this Agreement and the other Loan Documents to which the Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (2) the Senior Secured Leverage Ratio for the Test Period immediately preceding such merger or consolidation is less than or equal to 4.5 to 1.0 (calculated on a Pro Forma Basis);
(f) the Merger may be consummated; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 3 contracts
Sources: Credit Agreement (LVB Acquisition, Inc.), Credit Agreement (LVB Acquisition, Inc.), Credit Agreement (Biolectron, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, (a) The Borrower will not consolidate with or merge into another Personany other corporation or convey, transfer or Dispose of (whether in one transaction or in a series of transactions) all or lease its properties and assets substantially all of its assets (whether now owned or hereafter acquired) as an entirety to or in favor of any Person, except that:
unless: (ai) Holdings the corporation formed by such consolidation or any Restricted Subsidiary may merge into which the Borrower is merged or consolidate with the Parent Borrower (including a mergerPerson which acquires by conveyance or transfer, or which leases, the purpose properties and assets of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower substantially as an entirety shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated a corporation organized and existing under the Laws laws of the United StatesStates of America, any state State thereof or the District of Columbia and shall expressly assume, by writing approved by the Required Lenders, which approval shall not be unreasonably withheld, the Borrower’s obligation for the due and punctual payment of the principal of and interest on all Loans and the performance of every covenant of this Agreement on the part of the Borrower to be performed; and (zii) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, immediately after giving effect to such merger transaction, no Default or consolidation, the direct parent Event of the Parent Borrower Default shall expressly assume all the obligations of Holdings under this Agreement have occurred and the other Loan Documents to which Holdings is a party pursuant be continuing. This paragraph (a) shall only apply to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, which the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent surviving corporation and to conveyances, leases and transfers by the Borrower as transferor or lessor.
(b) Upon any such Personconsolidation by the Borrower with or merger by the Borrower into any other corporation or any conveyance, transfer or lease of the properties and assets of the Borrower substantially as an entirety in accordance with paragraph (a) of this Section, the “Successor Parent Borrower”), (A) successor corporation formed by such consolidation or into which the Successor Parent Borrower shall be an entity organized is merged or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower such conveyance, transfer or lease is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, made shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, and may exercise every right and power of, the Parent Borrower under this Agreement;Agreement with the same effect as if such successor corporation had been named as the Borrower herein, and in the event of any such conveyance or transfer, the Borrower (which term shall for this purpose mean the Person named as the “Borrower” in the first paragraph of this Agreement or any successor corporation which shall theretofore become such in the manner described in paragraph (a) of this Section), except in the case of a lease, shall be discharged of all obligations and covenants under this Agreement and may be dissolved and liquidated.
(c) If, upon any such consolidation of the Borrower with or merger of the Borrower into any other corporation, or upon any conveyance, lease or transfer of the property of the Borrower as an entirety or substantially as an entirety to any other Person, any Principal Property of the Borrower or of any Wholly-Owned Domestic Manufacturing Subsidiary (or any shares of stock or Debt of any Wholly-Owned Domestic Manufacturing Subsidiary) would thereupon become subject to any Lien, then unless such Lien could be created pursuant to Section 6.01 without equally and ratably securing the Loans, the Borrower, prior to or simultaneously with such consolidation, merger, conveyance, lease or transfer, will as to such Principal Property, shares of stock or Debt, secure the Loans outstanding hereunder (together with, if the Borrower shall so determine, any other Debt of the Borrower now existing or hereafter created which is not subordinate to indebtedness hereunder) equally and ratably with (or prior to) the Debt which upon such consolidation, merger, conveyance, lease or transfer is to become secured as to such Principal Property, shares of stock or Debt by such Lien, or will cause such Loans to be so secured.
Appears in 3 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (United Technologies Corp /De/), Bridge Credit Agreement (United Technologies Corp /De/)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or dispose of (whether in one transaction or in a series of 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) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and Columbia, and
(zc) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, ,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, Borrower,
(iii) no Event of Default exists at such time or after giving effect to such merger or consolidationtransaction, the and
(iv) after giving effect to such transaction, a direct parent of the Parent Borrower shall will (A) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for (acting at the avoidance Direction of doubt, the Required Lenders) and the Borrower and (B) pledge 100% of the Equity Interests of the Parent Borrower shall be pledged held by such direct parent to the Administrative Agent as CollateralCollateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent (acting at the Direction of the Required Lenders) and the Borrower;
(ia) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and Party,
(iib) any Restricted 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 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 Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted the Subsidiaries and if is not materially disadvantageous to the Lenders; provided that in the case of clause (d), the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or the definition of “Permitted Investments”;
(c3) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i4) so long as no Event of Default exists has occurred and is continuing or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) the Parent 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 Parent Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the a “Successor Parent Borrower”), ):
(i) the Successor Borrower will:
(A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof, Columbia,
(B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent (acting at the Direction of the Required Lenders) and the Borrower and
(C) deliver to the Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent (acting at the Direction of the Required Lenders);
(ii) substantially contemporaneously with such transaction (or at a later date as agreed by the Administrative Agent) (acting at the Direction of the Required Lenders),
(A) each Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Guaranty confirmed that (or in another form reasonably satisfactory to the Administrative Agent (acting at the Direction of the Required Lenders) and the Borrower) reaffirm its Guarantee Guaranty of the Obligations shall apply to (including the Successor Parent Borrower’s obligations under this Agreement, ),
(DB) each Loan Party, unless it is the other party to such merger or consolidation, shall have will, by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply (or in another form reasonably satisfactory to the Successor Parent Borrower’s obligations under this AgreementAdministrative Agent), confirm its grant or pledge thereunder,
(EC) if reasonably requested by the Administrative Agent (acting at the Direction of the Required Lenders), each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have will, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed Collateral Agent and the Borrower), confirm that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement;
(iii) [reserved]; and
(iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and Beneficial Ownership Regulations; provided further that if the foregoing are satisfied, the Successor B▇▇▇▇▇▇▇ will succeed to, and be substituted for, the Borrower under this Agreement;
(5) so long as no Event of Default has occurred and is continuing or would result therefrom, Holdings may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) Holdings will be the continuing or surviving Person or (b) if:
(i) the Person formed by or surviving any such merger or consolidation is not Holdings,
(ii) Holdings is not the Person into which the applicable Person has been liquidated or
(iii) in connection with a disposition of all or substantially all of Holding’s assets, the Person that is the transferee of such assets is not Holdings (any such Person described in the preceding clauses (i) through (iii), a “Successor Holdings”), then the Successor Holdings will:
(A) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(B) expressly assume all the obligations of Holdings under this Agreement and (F) the Parent Borrower shall have delivered other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower (acting at the Direction of the Required Lenders),
(C) pledge 100% of the Equity Interests of the Borrower held by such Successor Holdings to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent (acting at the Direction of the Required Lenders) and the Borrower,
(D) if requested by the Administrative Agent, deliver, or cause the Borrower to deliver, to the Administrative Agent (I) an officerOfficer’s certificate and an opinion of counsel, each Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this AgreementAgreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent (acting at the Direction of the Required Lenders); providedand
(iv) to the extent reasonably requested by the Administrative Agent, furtherthe Administrative Agent shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and Beneficial Ownership Regulations; provided further that if the foregoing are satisfied, the Successor Parent Borrower Holdings will succeed to, and be substituted for, the Parent Borrower Holdings under this Agreement;
(6) any Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other investment permitted pursuant to Section 7.05; provided that solely in the case of a merger or consolidation involving a Loan Party, no Event of Default exists or would result therefrom; provided further that the continuing or surviving Person will be (a) the Borrower or (b) a Subsidiary, in each case, which together with each of its Subsidiaries, will have complied with the applicable requirements of Section 6.11;
(7) a merger, dissolution, liquidation, consolidation or disposition, the purpose of which is to effect a disposition permitted pursuant to Section 7.04 or a disposition that does not constitute any Asset Sale (other than a transaction described in clause (b) of the definition of Asset Sale);
(8) the Borrower, Holdings and any Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name; and
(9) the Loan Parties and the Subsidiaries may consummate the Transactions.
Appears in 3 contracts
Sources: Super Priority Credit Agreement (WideOpenWest, Inc.), Super Priority Credit Agreement (WideOpenWest, Inc.), Credit Agreement (WideOpenWest, Inc.)
Fundamental Changes. Merge(a) The Company will not, dissolveand will not permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all sell, transfer, lease or otherwise make any Disposition of its assets property or the Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) to ), or in favor of any Personliquidate or dissolve, except that:
(ai) Holdings or the Company and its Subsidiaries may purchase and sell inventory in the ordinary course of business;
(ii) the Company and its Subsidiaries may enter into and consummate Permitted Acquisitions;
(iii) any Restricted Person may merge into the Company in a transaction in which the Company is the surviving corporation; and
(iv) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (A) any Subsidiary may merge into a Loan Party in a transaction in which the surviving entity is such Loan Party (provided that any such merger involving the Company must result in the Company as the surviving entity), (B) any wholly owned Subsidiary may merge into or consolidate with any wholly owned Subsidiary in a transaction in which the Parent Borrower surviving entity is a wholly owned Subsidiary and no Person other than the Company or a wholly owned Subsidiary receives any consideration, provided that if any such merger described in this clause (including B) shall involve a mergerLoan Party, the purpose surviving entity of which is such merger shall be a Loan Party, (C) any Subsidiary or Existing Joint Venture may sell, transfer, lease or otherwise dispose of its assets to reorganize the Parent Borrower into a new jurisdiction); provided that Loan Party or any wholly owned Subsidiary pursuant to a transaction permitted under Section 6.04;
(xv) the Parent Borrower Company or any Subsidiary may sell Receivables under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall be the continuing or surviving Person, not exceed an aggregate amount of $200,000,000);
(yvi) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries if at the time of such merger or consolidation other than the Parent Borrower and, thereof and immediately after giving effect to such merger or consolidationthereto no Default shall have occurred and be continuing, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower Company determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower Company and its Restricted Subsidiaries and if 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;
(cvii) the Company may sell, transfer or otherwise dispose of (A) excess, damaged, obsolete or worn out assets and scrap in the ordinary course of business, and (B) other property or assets of the Company and its Subsidiaries provided that (1) at the time thereof and immediately after giving effect to such sale, transfer or other disposition, no Default shall have occurred and be continuing, (2) such sale, transfer or disposal is for consideration at least 85% of which is cash, and (3) such consideration is at least equal to the fair market value of the assets being sold, transferred or otherwise disposed of; and
(viii) the Company or any Restricted Subsidiary may Dispose make Dispositions (other than Dispositions of all or substantially all of its assets (upon voluntary liquidation or otherwise) a type referred to in the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) foregoing clauses (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance through (vii) above) that, together with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any all other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws property of the United StatesCompany and its Subsidiaries previously leased, sold or disposed of as permitted by this clause (viii) during any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations fiscal year of the Parent Borrower under Company, do not constitute a Substantial Portion of the property of the Company and its Subsidiaries.
(b) The Company will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Company and its Subsidiaries on the date of execution of this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;related thereto.
Appears in 3 contracts
Sources: Credit Agreement (Fuller H B Co), Credit Agreement (Fuller H B Co), Credit Agreement (Fuller H B Co)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall not be an obligor in respect of any Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iiiv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders, provided, in the case of clauses (ii) through (iv), that (A) no Event of Default shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Loan Party, as the case may beParty in accordance with Sections 7.02 (other than Section 7.02(e));
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, Holdings may merge or consolidate with any other Person; provided that (A) Holdings shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”) (A) the Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(f) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02 (other than Section 7.02(e)); provided that 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;
(g) [Reserved]; and
(h) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 2 contracts
Sources: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a1) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and and
(zc) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, ,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, Borrower,
(iii) no Event of Default exists at such time or after giving effect to such merger or consolidationtransaction and
(iv) after giving effect to such transaction, the a direct parent of the Parent Borrower shall will (A) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for and the avoidance Borrower and (B) pledge 100% of doubt, the Equity Interests of the Parent Borrower shall be pledged held by such direct parent to the Administrative Agent as CollateralCollateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and the Borrower;
(ia) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party,
(b) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party; provided that a Loan Party and shall be the continuing or surviving Person;
(iic) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States will be permitted; and
(d) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided that in the case of clause (d), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or the definition of “Permitted Investments”;
(c3) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i4) so long as no Event of Default exists has occurred and is continuing or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) the Parent 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 Parent Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the a “Successor Parent Borrower”), ):
(i) the Successor Borrower will:
(A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof, Columbia,
(B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent and the Borrower and
(C) deliver to the Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent;
(ii) substantially contemporaneously with such transaction (or at a later date as agreed by the Administrative Agent),
(A) each Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Guaranty confirmed that (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guarantee Guaranty of the Obligations shall apply to (including the Successor Parent Borrower’s obligations under this Agreement, ),
(DB) each Loan Party, unless it is the other party to such merger or consolidation, shall have will, by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply (or in another form reasonably satisfactory to the Successor Parent Borrower’s obligations under this AgreementAdministrative Agent), confirm its grant or pledge thereunder,
(EC) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have will, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed Collateral Agent and the Borrower), confirm that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and Agreement;
(Fiii) after giving pro forma effect to such incurrence, the Parent Borrower shall have delivered would be permitted to incur at least $1.00 of additional Permitted Ratio Debt; and
(iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent an officer’s certificate shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and an opinion other information in respect of counselthe Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreementincluding the USA PATRIOT Act; provided, further, provided further that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this AgreementAgreement and in the case of the disposition of all or substantially all assets, the original Borrower will be released;
(5) so long as no Event of Default has occurred and is continuing or would result therefrom, Holdings may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) Holdings will be the continuing or surviving Person or (b) if:
(i) the Person formed by or surviving any such merger or consolidation is not Holdings,
(ii) Holdings is not the Person into which the applicable Person has been liquidated or
(iii) in connection with a disposition of all or substantially all of Holding’s assets, the Person that is the transferee of such assets is not Holdings (any such Person described in the preceding clauses (i) through (iii), a “Successor Holdings”), then the Successor Holdings will:
(A) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(B) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower,
(C) pledge 100% of the Equity Interests of the Borrower held by such Successor Holding Entity to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrower,
(D) if requested by the Administrative Agent, deliver, or cause the Borrower to deliver, to the Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this Agreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; and
(iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided further that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement and in the case of the disposition of all or substantially all assets, the original Holdings will be released;
(6) any Restricted Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other investment permitted pursuant to Section 7.05;
(7) a merger, dissolution, liquidation, consolidation or disposition, the purpose of which is to effect a disposition permitted pursuant to Section 7.04 or a disposition that does not constitute any Asset Sale (other than a transaction described in clause (b) of the definition of Asset Sale);
(8) the Borrower, Holdings and any Restricted Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name; and
(9) the Loan Parties and the Restricted Subsidiaries may consummate the Transactions.
Appears in 2 contracts
Sources: First Lien Credit Agreement (McAfee Corp.), First Lien Credit Agreement (McAfee Corp.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) to the extent constituting an Investment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Subsidiary which is not a Loan PartyParty in accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.02 or (ii) for any other purpose; provided that (A) the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11; and (B) in the case of subclause (ii) only, if (1) the merger or consolidation involves a U.S. Loan Party and such U.S. Loan Party is not the surviving Person, the surviving Restricted Subsidiary shall expressly assume all the obligations of such U.S. Loan Party under this Agreement and the other Loan Documents to which the U.S. Loan Party is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (2) the Secured Leverage Ratio for the Test Period immediately preceding such merger or consolidation calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10 is less than or equal to 4.5 to 1.0;
(f) the Merger may be consummated; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 2 contracts
Sources: Credit Agreement (Avaya Inc), Credit Agreement (VPNet Technologies, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, recapitalize, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default has occurred and is continuing or would result therefrom:
(a) Holdings any Borrower or any Restricted Significant Subsidiary that is a Loan Party may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction)any Domestic Subsidiary; provided that (xi) the Parent Borrower shall such Loan Party will be the continuing or surviving Person; or (ii) if such Loan Party is not the continuing or surviving Person, then (yA) such Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (zB) in concurrently with the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time effectiveness of such merger or consolidation other than consolidation, the Parent Borrower and, continuing or surviving Domestic Subsidiary will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the provisions of the Loan Documents after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(b) any Significant Subsidiary may merge or consolidate with (i) any Restricted Loan Party, provided that (A) such Loan Party will be the continuing or surviving Person or (B) if such Loan Party is not the continuing or surviving Person, then (1) such Subsidiary will be a Domestic Subsidiary, (2) the Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation and (3) concurrently with the effectiveness of such merger or consolidation, such Domestic Subsidiary will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the provisions of the Loan Documents after giving effect to such merger or consolidation; (ii) any one or more other Domestic Subsidiaries that is not a Loan Party may merge Party, provided that if any merger or consolidate with consolidation of two such Domestic Subsidiaries which are not Loan Parties results in the creation of a Material Subsidiary, such resulting Subsidiary will be subject to Section 6.12; or into (iii) any other Restricted Foreign Subsidiary; provided that such merging or consolidating Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the LendersParty;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may bereserved;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance connection with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10any Permitted Acquisition, the Parent Borrower any Significant Subsidiary may merge into or consolidate with any other PersonPerson or permit any other Person to merge into or consolidate with it; provided that (i) the Parent Person surviving such merger will be a directly or indirectly wholly-owned Subsidiary of a Borrower shall be the continuing or surviving corporation or and (ii) in the case of any such merger to which any Loan Party is a party, (A) such Loan Party is the surviving Person, or (B) if such Loan Party is not the surviving Person, then (1) such surviving Person formed by or surviving will be a Domestic Subsidiary, (2) the Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation is not and (3) concurrently with the Parent Borrower (any effectiveness of such merger or consolidation, such surviving Person will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such surviving Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws ’s assumption of all of the United States, any state thereof, Obligations of such merging or consolidating Loan Party and to comply with the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations provisions of the Parent Borrower under this Agreement and the other Loan Documents to which (including the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (Crequirements of Section 6.12) each Guarantor, unless it is the other party after giving effect to such merger or consolidation; and
(e) the liquidation or dissolution of any Subsidiary; provided that, shall have by in the case of any Subsidiary that is a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it (i) the Borrowers provide written notice to Administrative Agent at least ten days prior to the effectiveness of such liquidation or dissolution and (ii)(A) all assets and property of such Subsidiary is the other party transferred to another Loan Party or (B) if such assets and property are transferred to another Subsidiary, (1) such recipient Subsidiary is a Domestic Subsidiary and (2) if such transfer of assets and property to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to recipient Subsidiary results in the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor creation of a Mortgaged PropertyMaterial Subsidiary, unless it is upon the other party effectiveness of such transfer of assets or property the Borrowers will comply with Section 6.12 with respect to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;recipient Subsidiary.
Appears in 2 contracts
Sources: Credit Agreement (Ch2m Hill Companies LTD), Credit Agreement (Ch2m Hill Companies LTD)
Fundamental Changes. Merge(a) Neither Holdings nor the Borrower will, dissolvenor will they permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (ai) Holdings or any Restricted Subsidiary Person may merge into or consolidate with the Parent Borrower (including in a merger, transaction in which the purpose of which Borrower is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof entity or the District of Columbia and surviving entity (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), ) (A) the Successor Parent Borrower shall be an entity is organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) expressly assumes the Successor Parent Borrower shall expressly assume all the Borrower’s obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each GuarantorSubsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security the Collateral Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, Agreement and (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;, (ii) any Person (other than the Borrower) may merge into or consolidate with any Subsidiary in a transaction in which the surviving entity is a Subsidiary and, if any party to such merger or consolidation is a Subsidiary Loan Party, is a Subsidiary Loan Party, (iii) any Subsidiary may merge into or consolidate with any Person (other than the Borrower) in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Subsidiary, (iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that any such merger or consolidation involving a Person that is not a wholly owned Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 6.04 and (v) Holdings, the Borrower or any Subsidiary may engage in a merger, consolidation, dissolution or liquidation, the purpose of which is to effect a disposition permitted pursuant to Section 6.05.
(b) The Borrower will not, and Holdings and the Borrower will not permit any Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Subsidiaries on the date hereof and businesses reasonably related, incidental or ancillary thereto.
(c) Holdings will not engage in any business or activity other than the ownership of all the outstanding Equity Interests of the Borrower and activities incidental thereto and compliance with its obligations under the Loan Documents, the ABL Credit Agreement and the Senior Unsecured Notes Documents or any Refinancing Indebtedness in respect thereof. Holdings will not own or acquire any material assets (other than Equity Interests of the Borrower, cash and Permitted Investments) or incur any liabilities (other than liabilities under the Loan Documents or Guarantees permitted by Section 6.01(b), liabilities imposed by law, including tax liabilities, and other liabilities incidental to its existence and permitted business and activities).
Appears in 2 contracts
Sources: Credit Agreement (Affinia Group Intermediate Holdings Inc.), Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate Consolidate with or into another Personmerge with or into, or sell, convey, assign, lease, transfer or otherwise Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except thatunless:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory With regards to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;Borrower,
(i) any Restricted Subsidiary that is not a Loan Party may merge the resulting, surviving or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and transferee Person (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”)) will expressly assume, (A) by an assumption agreement, executed and delivered to the Successor Parent Borrower shall be an entity organized or existing under the laws of the United StatesAdministrative Agent, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, all the obligations of the Borrower hereunder;
(Cii) each Guarantor, unless it is the other party immediately after giving effect to such merger transaction (and treating any Indebtedness that becomes an obligation of the Successor Borrower or consolidationany Subsidiary of the Successor Borrower as a result of such transaction as having been Incurred by the Successor Borrower or such Subsidiary at the time of such transaction), no Default or Event of Default shall have by a supplement occurred and be continuing;
(iii) immediately after giving effect to such transaction, either (x) the Guaranty confirmed that its Guarantee Fixed Charge Coverage Ratio for the Obligor Group and such Successor Borrower would be less than 2.50 to 1.00 or (y) the Fixed Charge Coverage Ratio for the Obligor Group and such Successor Borrower would be lower than it was immediately prior to giving effect to such transaction;
(iv) the Liens of the Obligations shall apply to Administrative Agent on the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement assets of the applicable Mortgage Borrower and in the Capital Stock of the Borrower will not be adversely affected by any such transaction; and
(or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (Fv) the Parent Borrower shall have delivered to the Administrative Agent an officerOfficer’s certificate Certificate and an opinion of counselin form and substance reasonably satisfactory to the Administrative Agent, each stating to the effect that such consolidation, merger or consolidation and such supplement to this Agreement or any Collateral Document comply transfer complies with this Agreement; provided, further, that if the foregoing are satisfied. For purposes of this Section 7.04(a), the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Borrower, which properties and assets, if held by the Borrower instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Borrower on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Borrower. The Successor Parent Borrower will succeed to, and be substituted for, and may exercise every right and power of, the Parent Borrower hereunder but in the case of a lease of all or substantially all its assets, the predecessor company will not be released from its obligations under this Agreement;. Notwithstanding the foregoing clauses (ii) and (iii) (which do not apply to transactions referred to in this sentence), (a) any Restricted Subsidiary (other than the Borrower) may consolidate or otherwise combine with, merge into or transfer all or part of its properties and assets to any other Restricted Subsidiary (other than the Borrower). Notwithstanding the preceding clauses (ii) and (iii) (which do not apply to the transactions referred to in this sentence), the Borrower may consolidate or otherwise combine with or merge into an Affiliate incorporated or organized for the purpose of changing the legal domicile of the Borrower, reincorporating the Borrower in another jurisdiction, or changing the legal form of the Borrower so long as the amount of Indebtedness is not increased thereby. The foregoing provisions (other than the requirements of the foregoing clause (ii)) shall not apply to the formation or organization of a new Subsidiary as a Restricted Subsidiary.
(b) With regards to the Guarantors,
(i) the other Person is the Borrower or any Restricted Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction; or
(ii) (x) either (1) a Guarantor is the continuing Person or (2) the resulting, surviving or transferee Person expressly assumes all of the obligations of the Guarantor hereunder; and (y) immediately after giving effect to the transaction, no Default has occurred and is continuing; or
(iii) the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in each case other than to the Borrower or a Restricted Subsidiary) otherwise permitted by this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Igate Corp), Credit Agreement (Igate Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that, so long as no Default exists or Dispose of would result therefrom, (whether in one transaction i) any Person may merge with or into, consolidate with or amalgamate with the Borrower in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or transaction in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with which the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (yii) such merger any Person (other than Parent Guarantor) may merge with or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United Statesinto, consolidate with or amalgamate with any state thereof or the District of Columbia and Subsidiary (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger Borrower) in a transaction in which the continuing or consolidation, the direct parent surviving Person shall be a Subsidiary of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent andBorrower, for the avoidance of doubt, the Equity Interests (iii) any Subsidiary of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge with or into, consolidate with or into amalgamate with any other Restricted Person in order to consummate an Investment permitted by Section 7.02 or a Disposition permitted by Section 7.05; (iv) any Subsidiary of the Borrower may merge into, the Parent Guarantor, the Borrower that is not a Loan Party or any other Subsidiary of the Borrower; and (iiv) any Restricted Subsidiary of the Borrower may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
. For the avoidance of doubt, in connection with an internal restructuring, (cx) any Restricted Subsidiary DOC OP may Dispose of merge, consolidate or amalgamate with or into, or distribute or transfer all or substantially all of its assets to, DOC or the Borrower and (upon voluntary liquidation y) DOC may merge, consolidate or otherwise) to the Parent Borrower amalgamate with or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party into, or a Foreign Loan Party, then the transferee must be a U.S. Loan Party distribute or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists transfer all or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10substantially all its assets to, the Parent Borrower may merge with any other Person; provided that (i) Borrower, it being understood and agreed that, in the Parent Borrower shall be event the continuing successor or surviving corporation or (ii) if the Person formed by or surviving transferee entity in any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall transaction expressly assume all assumes the obligations of the Parent Borrower DOC OP under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory any DOC Debt, such assumption shall be permitted notwithstanding anything to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, contrary in this Article VII and shall have by not constitute a supplement to the Guaranty confirmed that its Guarantee new incurrence of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this AgreementIndebtedness for purposes Section 7.03; provided, further, that if the foregoing are satisfiedprovided that, the Successor Parent Borrower will succeed to, and be substituted for, Loan Parties shall provide such customary “know your customer” documentation as the Parent Borrower under this Agreement;Lenders may reasonably require in connection with such transfer.
Appears in 2 contracts
Sources: Term Loan Agreement (Healthpeak Properties, Inc.), Credit Agreement (Healthpeak Properties, Inc.)
Fundamental Changes. MergeThe Borrower will not, dissolve, liquidateand will not permit any of its Material Subsidiaries to, consolidate with or into another Personwith, merge into, or Dispose sell all or substantially all of the assets of the Borrower or any Material Subsidiary (whether in one a single transaction or in a series of related transactions) all to any other Person or substantially all permit any other Person to merge into the Borrower or any of its assets (whether now owned or hereafter acquired) to or in favor of any PersonMaterial Subsidiaries, except that:
(a) Holdings : the Borrower or any Restricted Subsidiary of its Material Subsidiaries may merge or consolidate with the Parent Borrower one another or any other Person so long as (including a merger, the purpose of which is i) both before and immediately after giving effect to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to consolidation, no Default or Event of Default shall have occurred and be incorporated under the Laws of the United Statescontinuing, any state thereof or the District of Columbia and (zii) in the case of a merger or consolidation of Holdings with and into involving the Parent Borrower, Holdings shall have no direct Subsidiaries at the time Borrower is the surviving Person, (iii) in the case of such a merger or consolidation other than involving a Subsidiary Guarantor, the Parent Subsidiary Guarantor is the surviving Person (unless the respective Subsidiary Guarantor is merging into or consolidating with the Borrower and(in which case the Borrower will be the survivor thereof)), after giving effect to such (iv) in the case of a merger or consolidationconsolidation involving a Material Subsidiary, the direct parent of Material Subsidiary is the Parent Borrower shall expressly assume all surviving Person (unless the obligations of Holdings under this Agreement and respective Material Subsidiary is merging into or consolidating with the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if a Subsidiary Guarantor (in which case the transferor in such a transaction is a U.S. Loan Party Borrower or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Partyrespective Subsidiary Guarantor, as the case may be;
, will be the survivor thereof)) and (dv) (i) so long as no Default exists or would result therefrom and in the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on case of a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with or involving a Material Subsidiary or any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such third Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have as the case may be, is consummated pursuant to an arm's length transaction and the Borrower or the Subsidiary receives at least fair market value therefor (as determined in good faith by a supplement to the Guaranty confirmed that its Guarantee of Borrower or such Subsidiary, as the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;case may be).
Appears in 2 contracts
Sources: Credit Agreement (Waters Corp /De/), Credit Agreement (Waters Corp /De/)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a1) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and and
(zc) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, ,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, Borrower,
(iii) no Event of Default exists at such time or after giving effect to such merger or consolidationtransaction and
(iv) after giving effect to such transaction, the a direct parent of the Parent Borrower shall will (A) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for and the avoidance Borrower and (B) pledge 100% of doubt, the Equity Interests of the Parent Borrower shall be pledged held by such direct parent to the Administrative Agent as CollateralCollateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and the Borrower;
(i2) (a) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;,
Appears in 2 contracts
Sources: First Lien Credit Agreement (McAfee Corp.), Second Lien Credit Agreement (McAfee Corp.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) to the extent constituting an Investment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Subsidiary which is not a Loan PartyParty in accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each GuarantorSubsidiary Borrower, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (FD) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.02 or (ii) for any other purpose; provided that (A) the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11; and (B) in the case of subclause (ii) only, if (1) the merger or consolidation involves a Subsidiary Borrower and such Subsidiary Borrower is not the surviving Person, the surviving Restricted Subsidiary shall expressly assume all the obligations of such Subsidiary Borrower under this Agreement and the other Loan Documents to which the Subsidiary Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (2) the Senior Secured Leverage Ratio for the Test Period immediately preceding such merger or consolidation is less than or equal to 4.5 to 1.0 (calculated on a Pro Forma Basis);
(f) the Merger may be consummated; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 2 contracts
Sources: Credit Agreement (LVB Acquisition, Inc.), Credit Agreement (Biolectron, Inc.)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve (including, in each case, pursuant to a Delaware LLC Division) or dispose of (whether in one transaction or in a series of 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) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, merger the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and Columbia, and
(zc) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, ,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, Borrower,
(iii) no Event of Default exists at such time or after giving effect to such merger or consolidationtransaction, the and
(iv) after giving effect to such transaction, a direct parent of the Parent Borrower shall will (I) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for and the avoidance Borrower and (II) pledge 100% of doubt, the Equity Interests of the Parent Borrower shall be pledged held by such direct parent to the Administrative Agent as CollateralCollateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and the Borrower;
(ia) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party;
(b) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party; provided that a Loan Party and shall be the continuing or surviving Person;
(iic) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party or Restricted Subsidiary in another jurisdiction in the United States will be permitted; and
(d) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if in the transferor in case of clause (d), the Person who receives the assets of such a transaction dissolving or liquidated Restricted Subsidiary that is a U.S. Guarantor shall be a Loan Party or a Foreign Loan Party, then the transferee must such disposition shall otherwise be a U.S. Loan Party or Foreign Loan Party, as the case may bepermitted under Section 7.05;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
Appears in 2 contracts
Sources: First Lien Credit Agreement (Convey Holding Parent, Inc.), First Lien Credit Agreement (Convey Holding Parent, Inc.)
Fundamental Changes. Merge(a) The Parent and the Borrower will not, dissolveand will not permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or permit any other Person to merge into or consolidate with it, or otherwise Dispose of (whether in one transaction all, or in a series substantially all, of transactions) its assets, or all or substantially all of the stock of any of its assets Subsidiaries (in each case, whether now owned or hereafter acquired) ), or liquidate or dissolve, or divide into two or more Persons, including becoming a Delaware Divided LLC (whether or not the original Person survives such division), or create, or reorganize into, one or more series pursuant to a Delaware LLC Division or in favor of any Personotherwise, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries if at the time of such merger or consolidation other than the Parent Borrower and, thereof and immediately after giving effect to such merger or consolidation, the direct parent of the Parent Borrower thereto no Default shall expressly assume all the obligations of Holdings under this Agreement have occurred and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
continuing (i) any Restricted Subsidiary (other than a Subsidiary Guarantor that is not owns a Loan Party Collateral Pool Property) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that in a transaction in which the Borrower is not a Loan Party the surviving corporation and there is no Change in Control, (ii) any Restricted Person (other than a Subsidiary Guarantor that owns a Collateral Pool Property) may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary and there is no Change in Control, (iii) any Subsidiary (other than a Subsidiary Guarantor that owns a Collateral Pool Property) may Dispose of its assets to the Borrower or to another Subsidiary and (iv) any Subsidiary (other than a Subsidiary Guarantor that owns a Collateral Pool Property) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
(b) The Parent and the Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to The Borrower and the Parent Borrower will not permit their fiscal years to end on a day other than December 31 or another Restricted Subsidiary; provided that if change the transferor in such a transaction is a U.S. Loan Party Borrower’s or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;Parent’s method of determining its fiscal quarters.
(d) (i) so long as no Default exists The Parent shall not directly own or would result therefrom acquire any Real Estate, and the Parent Borrower shall be not conduct any substantial business activities other than the direct or indirect ownership of Equity Interests in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger Borrower, its Subsidiaries and ancillary or consolidation incidental business in accordance with Section 1.10connection therewith (including, without limitation, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”issuance of Permitted Convertible Indebtedness), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;. 125 DB3/ 204690278.10
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Veris Residential, L.P.), Revolving Credit and Term Loan Agreement (Veris Residential, L.P.)
Fundamental Changes. Merge, dissolve, liquidate, wind up, consolidate with or into another Person, reorganize, enter into a plan of reorganization, recapitalization or Dispose reclassify its Equity Interests (or agree to do any of the foregoing, unless such agreement provides as a condition to its effectiveness that either (whether y) the Required Lenders have consented in one transaction writing or will consent in writing concurrently with such effectiveness, or (z) (i) the Aggregate Commitments have been terminated or will be terminated concurrently with such effectiveness, (ii) all of the Secured Obligations (other than contingent indemnification obligations for which no claim has been asserted and any Other Liabilities which are not by their terms then due and payable provided that the Agents shall have received such indemnities and collateral security as they shall have required in accordance with the terms of Section 10.11 of the Credit Agreement) have been indefeasibly paid in full in cash or will be indefeasibly paid in full in cash concurrently with such effectiveness, (iii) all L/C Obligations have been, or will be concurrently with such effectiveness, reduced to zero (or fully Cash Collateralized or supported by another letter of credit in a series manner reasonably satisfactory to the L/C Issuer and the Administrative Agent), and (iv) the Administrative Agent has, or will have concurrently with such effectiveness, no further obligation to endeavor to cause the L/C Issuer to issue Letters of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonCredit under the Credit Agreement), except that, so long as no Default or Event of Default shall have occurred and be continuing prior to or immediately after giving effect to any action described below or would result therefrom:
(a) Holdings or any Restricted Subsidiary of the Parent may merge or consolidate with the Parent Borrower (including with, or dissolve or liquidate into, a mergerLoan Party, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Loan Party shall be the continuing or surviving Person, and provided further that if a Borrower is party to any such merger or consolidation, such Borrower shall be the continuing or surviving Person, ;
(yb) such merger or consolidation does not result in any Subsidiary of the Parent Borrower ceasing to be incorporated under the Laws (other than a Borrower) may merge or consolidate with, or dissolve or liquidate into any other Subsidiary of the United States, any state thereof or the District of Columbia and Parent (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower anda Loan Party), after giving effect provided that if a Loan Party is party to any such merger or consolidation, the direct parent surviving Person shall upon the effectiveness of the Parent Borrower shall any such merger or consolidation, expressly assume all the obligations duties, liabilities and Obligations of Holdings such Loan Party under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto documentation in form and substance reasonably satisfactory acceptable to the Administrative Agent andAgent, for the avoidance of doubtand provided further that in each case when any wholly-owned Subsidiary is merging or consolidating with another Subsidiary, the Equity Interests of the Parent Borrower wholly-owned Subsidiary shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge the continuing or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenderssurviving Person;
(c) in connection with a Permitted Acquisition, any Restricted Subsidiary of a Loan Party (other than a Borrower) may merge with or into or consolidate with any other Person or permit any other Person to merge with or into or consolidate with it; provided that (i) the Person surviving such merger or consolidation shall be a wholly-owned Subsidiary of a Loan Party, and (ii) if a Loan Party is party to any such merger or consolidation, (A) such Loan Party is the surviving Person or (B) the surviving Person shall upon the effectiveness of any such merger or consolidation, expressly assume all the duties, liabilities and Obligations of such Loan Party under this Agreement and the other Loan Documents pursuant to documentation in form and substance reasonably acceptable to the Administrative Agent;
(d) (i) any Subsidiary of the Parent (other than a Loan Party) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or any one or more other Subsidiaries, (ii) any Loan Party (other than a Foreign Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Loan Party, then the transferee must be a U.S. and (iii) any Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Borrower; and
(e) any Loan Party and any Subsidiary of a Loan Party may merge, dissolve, liquidate or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge consolidate with any other Person; provided that Person in connection with a Disposition permitted pursuant to clauses (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”b), (Af), (g), (h) the Successor Parent Borrower shall be an entity organized or existing under the laws (l) of the United States, any state thereof, the District definition of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;Permitted Dispositions.
Appears in 2 contracts
Sources: Credit Agreement (A.C. Moore Arts & Crafts, Inc.), Credit Agreement (A.C. Moore Arts & Crafts, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of 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) Holdings or any Restricted Subsidiary may merge merge, amalgamate or consolidate with or into the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger Person or consolidation does not result in the Parent Borrower ceasing to surviving Person shall be incorporated a Person organized and existing under the Laws of the United States, States or any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party Borrower pursuant to documents reasonably acceptable to the Administrative Agent (any such Person, a supplement hereto or thereto “Successor Borrower”); provided, further, that (i) unless the Borrower is the surviving Person, each Loan Party shall have reaffirmed in writing, in form and substance reasonably satisfactory to the Administrative Agent andAgent, for the avoidance that its Guaranty with respect to, and grant of doubtLiens as security for, the Equity Interests of the Parent Borrower Obligations shall be pledged as Collateral;
apply to such Successor Borrower’s obligations under this Agreement, (iii) when any Restricted Subsidiary that is not a Loan Party is merging, amalgamating or consolidating with or into the Borrower, (A) the Borrower shall be the continuing or surviving Person or (B) such merger, amalgamation or consolidation shall be treated as if it is an Investment, and such Investment must be a permitted Investment in accordance with Section 7.02, (iii) the Borrower or Successor Borrower shall be a direct Wholly-Owned Subsidiary of Holdings, (iv) the Borrower or the Successor Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer stating that (A) such merger or consolidation complies with this Agreement and (B) if the surviving Person is a Successor Borrower, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (v) the Borrower shall have delivered to the Administrative Agent and each Lender a Beneficial Ownership Certification and any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent or any Lender that the Administrative Agent or such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act;
(i) any Restricted Subsidiary may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary; provided that when any Restricted Subsidiary of the Parent Borrower that is not a Loan Party is merging, amalgamating or consolidating with or into any Guarantor, (A) the Guarantor shall be the continuing or surviving Person or (B) such merger, amalgamation or consolidation shall be treated as if it is an Investment, and such Investment must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.02, and (ii) any Restricted Subsidiary (other than any Co-Borrower) may liquidate or dissolve dissolve, or the Borrower or any Restricted Subsidiary may (if the perfection and priority of the Liens securing the Obligations is not materially adversely affected thereby, as determined by the Borrower in good faith) change its legal form if the Parent Borrower determines in good faith that such action is in the best interests interest of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the LendersLenders (it being understood that (x) in the case of any dissolution of a Restricted Subsidiary that is a Guarantor, such Restricted Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Guarantor and (y) in the case of any change in legal form, (A) a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder and (B) a Borrower will remain a Borrower);
(c) any Restricted Subsidiary (other than any Co-Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or to another Restricted Subsidiary; provided that (x) if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan PartyGuarantor, then (i) the transferee must either be the Borrower or a Guarantor or (ii) such Disposition shall be treated as if it is an Investment, and such Investment must be a U.S. permitted Investment in a Restricted Subsidiary which is not a Loan Party or Foreign Loan Partyin accordance with Section 7.02 and (y) if such merger is with a Co-Borrower, as such Co-Borrower is the case may besurviving entity;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower any Restricted Subsidiary may merge with any other PersonPerson in order to effect an Investment permitted pursuant to Section 7.02; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws a Restricted Subsidiary, which together with each of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidationits Subsidiaries, shall have by complied with the requirements (if any) of Section 6.12; and
(e) a supplement merger, 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(f)(i)); provided that if a merger, dissolution, liquidation, consolidation or Disposition involves the Guaranty confirmed that its Guarantee of Revolving Loan Co-Borrower, the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Revolving Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Co-Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counselsurvive such merger, each stating that such merger dissolution, liquidation, consolidation or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;Disposition.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Traeger, Inc.), First Lien Credit Agreement (TGPX Holdings I LLC)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any of its Subsidiaries to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (whether in one a single transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its assets Subsidiaries on a consolidated basis (in each case, whether now owned or hereafter acquired) to or in favor liquidate or dissolve; provided that if, at the time thereof and immediately after giving effect thereto, no Default or Event of any PersonDefault shall have occurred and be continuing, except that:
(ai) Holdings the Borrower or any Restricted Subsidiary may merge or consolidate with a Person if the Parent Borrower (including or such Subsidiary if the Borrower is not a party to such merger, ) is the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (yii) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United Statesany Subsidiary may merge into another Subsidiary, provided that if any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect party to such merger or consolidationis a Subsidiary Loan Party, the direct parent Subsidiary Loan Party shall be the surviving Person, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to a Subsidiary Loan Party, (iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory not materially disadvantageous to the Administrative Agent andLenders, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(iv) any Restricted Subsidiary may merge, dissolve or consolidate in connection with the consummation of any Permitted Acquisition, and (vi) any Subsidiary that is not a Loan Party may merge sell, transfer, lease or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose otherwise dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if any Subsidiary of the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;Borrower.
(db) (i) so long as no Default exists The Borrower will 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 its Subsidiaries on the date hereof and businesses ancillary or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger reasonably related to, or consolidation in accordance with Section 1.10extensions of, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws business of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Pennant Group, Inc.), Credit Agreement (Ensign Group, Inc)
Fundamental Changes. Merge(a) The Parent will not, dissolveand will not permit any of its Subsidiaries to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction or in a series of 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) Holdings or any Restricted Subsidiary may merge into or consolidate with the Parent Borrower (including a mergerit, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction)or liquidate or dissolve; provided that if, at the time thereof and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (xi) Parent may merge with a Person in connection with a Permitted Acquisition so long as a Parent is the Parent Borrower shall be the continuing or surviving Person, (yii) a Borrower may merge with a Person in connection with a Permitted Acquisition so long as a Borrower is the surviving Person, (iii) any wholly owned Subsidiary may merge into or consolidate with another wholly owned Subsidiary, provided that if any party to such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent andLoan Party, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into shall be the surviving Person, (iv) any Subsidiary (other Restricted Subsidiary of the Parent Borrower that is not than a Loan Party and (iiParty) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
, (cv) any Restricted Subsidiary of the Parent which is not a Borrower may Dispose merge into or consolidate with any Person in a transaction permitted under Section 7.6 in which after giving effect to such transaction, the surviving entity is not a Subsidiary and (vi) any Subsidiary which is not a Borrower may liquidate or dissolve after the transfer of all or substantially all of its assets (upon voluntary to another Loan Party in a transaction permitted under Section 7.6 if the Parent determines in good faith that such liquidation or otherwise) to dissolution is in the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations best interest of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Subsidiaries and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating determines that such merger liquidation or consolidation dissolution is not materially disadvantageous to the Lenders.
(b) The Parent will not, and such supplement to this Agreement or will not permit any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed of its Subsidiaries to, and be substituted for, engage in any business other than businesses of the type conducted by the Parent Borrower under this Agreement;and its Subsidiaries on the date hereof and businesses reasonably related thereto.
Appears in 2 contracts
Sources: Credit Agreement (Tessco Technologies Inc), Credit Agreement (Tessco Technologies Inc)
Fundamental Changes. Merge, dissolve, liquidate, The Borrower will not consolidate with or into another Personmerge with or into, or Dispose transfer all or substantially all, or any substantial portion, of (whether its properties and assets to one or more Persons in one transaction or in a series of transactionsrelated transactions unless (i) if the Borrower is the surviving entity in any such consolidation or merger, after giving effect to such transaction, there would not exist any Default or Event of Default hereunder, (ii) if the Borrower is not the surviving entity in any such consolidation or merger, each of the Lenders (or in the case of any such consolidation or merger which is in the nature of an internal corporate reorganization of only the Borrower and its Subsidiaries and does not, in the reasonable judgment of the Required Lenders affect, in any material respect, the creditworthiness of the Borrower, the Required Lenders) consents to such consolidation or merger in advance or (iii) if the Borrower transfers all or substantially all, or any substantial portion, of its properties and assets, the transferee or transferees thereto are wholly owned Subsidiaries (except the transferee or transferees of any substantial portion of its properties and assets, but not all or substantially all of its assets (whether now properties and assets, shall not be required to be wholly owned or hereafter acquiredSubsidiaries if the transfer is for fair consideration as reasonably determined by the Borrower) and any such transferee that is a domestic Subsidiary becomes a joint and several guarantor hereunder pursuant to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower documentation (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (xclosing documentation and opinions) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for (it being understood that the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee on behalf of the Obligations Lenders, may agree to amendments hereto solely to provide for such guarantor arrangements as it may reasonably determine are necessary or useful). For the purposes of this Section, “Subsidiary” of the Borrower shall apply to include any partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor happening of a Mortgaged Property, unless it is the other party contingency) to such merger or consolidation, shall have by an amendment to or restatement elect a majority of the applicable Mortgage (board of directors or other instrument reasonably satisfactory to managers thereof are at the Administrative Agent) confirmed that its obligations thereunder shall apply to time owned, or the Successor Parent management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by the Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;.
Appears in 2 contracts
Sources: Credit Agreement (McGraw-Hill Companies Inc), 364 Day Credit Agreement (McGraw-Hill Companies Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings Parent or any Restricted Subsidiary may merge or consolidate with (i) the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings Parent with and into the Parent Borrower, Holdings Parent shall have no direct Subsidiaries at the time of such merger other than Foreign Holdings or consolidation Holdings, or (ii) Parent or any one or more other Restricted Subsidiaries other than the Borrower; provided that (i) when Parent Borrower andor any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, after giving effect to a Loan Party shall be the continuing or surviving Person and (ii) in the case of a merger of Parent with another Restricted Subsidiary, Parent shall have no direct Subsidiaries at the time of such merger other than Foreign Holdings or consolidationHoldings; provided, the direct parent further that if a Specified Foreign Subsidiary is merging with another Restricted Subsidiary that is not a Subsidiary of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent andHoldings, for the avoidance of doubt, the Equity Interests of the Parent Borrower such surviving Person shall be pledged as Collaterala Guarantor;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (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 PartyParty in accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that 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;
(f) [reserved];
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(h) so long as no Default shall have occurred and be continuing or (in the case of the Foreign Reorganization) would result therefrom, the Foreign Reorganization and any Permitted Intercompany Transfer may be consummated.
Appears in 2 contracts
Sources: Credit Agreement (Freescale Semiconductor Holdings I, Ltd.), Credit Agreement (Freescale Semiconductor Holdings I, Ltd.)
Fundamental Changes. MergeThe Parent and the Borrower will not, dissolveand will not permit any other Loan Party to, liquidate, either (x) merge into or consolidate with or into another any other Person, or Dispose of permit any other Person to merge into or consolidate with it, or (whether in one transaction y) liquidate or in a series of transactions) all or substantially all of its assets (whether now owned 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 and, in the event such merger or consolidation is in connection with an Investment (including a Permitted Acquisition), the Investment is permitted by Section 7.03:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into the Parent, the Borrower or any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if in a transaction in which the Parent Borrower determines in good faith that such action is in Parent, the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and , is the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Personsurviving entity; provided that (i) the Parent and the Borrower shall be the continuing will not merge with or surviving corporation or into each other and (ii) if the Parent or the Borrower merges with any other Loan Party, the Parent or the Borrower, as the case may be, must be the surviving entity;
(b) any Person may merge with or into the Parent, the Borrower or any other Loan Party in a transaction in which the Parent, the Borrower or such Loan Party, as the case may be, is not the surviving entity; provided that (i) the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity a corporation organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofthereof or, in the case of a merger or consolidation involving the Parent, the laws of the jurisdiction in which the Parent is organized (such Person being herein referred to as the “Successor Entity”), (Bii) the Successor Parent Borrower Entity shall expressly assume all the obligations of the Parent Parent, the Borrower or the applicable Loan Party, as the case may be, under this Agreement and the other Loan Documents to which the Parent Parent, the Borrower or such Loan Party, as applicable, is a party party, pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (Ciii) if such merger or consolidation involves the Borrower, then each Guarantor, unless it is the other party to such merger or consolidation, shall have (by a supplement to the Guaranty Agreement) confirmed that its Guarantee of the Obligations shall apply to all of the Successor Parent BorrowerEntity’s obligations under this Agreement, (Div) each Loan Partyif requested by the Administrative Agent, unless it is the other party to such merger or consolidation, Administrative Agent shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor received an opinion 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 counsel reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply Agent to the effect that the applicable Loan Documents are legal, valid, binding and enforceable obligations of the Successor Parent Borrower’s obligations under this Agreement Entity and (Fv) this clause (b) shall not be construed to permit the Borrower to merge with or into the Parent. In the case of any such merger of the Parent or the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply in accordance with this Agreement; provided, further, that if the foregoing are satisfiedclause (b) above, the Successor Entity shall be deemed to be the Parent Borrower will succeed toor the Borrower, and be substituted foras applicable, for all purposes of the Loan Documents. Notwithstanding anything to the contrary herein, the Parent will not engage, and will not permit the Borrower under this Agreement;to engage, in any transaction that would reduce the percentage of Equity Interests owned by the Parent in the Borrower, except for (x) sales, transfers and other disposals of such Equity Interests to directors, officers or employees of the Borrower pursuant to any employee stock ownership plan or similar plan for the benefit of directors, officers or employees of the Borrower and (y) the issuance of such Equity Interests as consideration for any acquisition from a third party; provided that following any such issuance of Equity Interests to a third party, no Change in Control shall have occurred and the majority of the seats (other than vacant seats) on the board of directors of the Borrower shall be occupied by Persons nominated by the board of directors of the Borrower or the Parent or appointed by directors so nominated.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Willis Group Holdings LTD), Credit Agreement (Willis Group Holdings LTD)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, no Existing 2016 Notes shall remain outstanding at the time of such merger or consolidation, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Non-Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Non-Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted (provided that the surviving Person shall be a Loan Party) and (iiiv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) to the extent constituting an Investment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Subsidiary which is not a Loan PartyParty in accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate certificate, if requested by the Administrative Agent, and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any Person other than the Borrower (i) in order to effect an Investment permitted pursuant to Section 7.02 or (ii) for any other purpose; provided that (A) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11; and (B) in the case of subclause (ii) only, (1) if the merger or consolidation involves a Guarantor and such Guarantor is not the surviving Person, the surviving Restricted Subsidiary shall expressly assume all the obligations of such Guarantor under this Agreement and the other Loan Documents to which the Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (2) the Borrower shall be in compliance with the financial covenant set forth in Article VIII to the extent then applicable (calculated on a Pro Forma Basis); and
(f) a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 2 contracts
Sources: Term Loan Amendment (Sabre Corp), Tenth Term Loan B Refinancing Amendment (Sabre Corp)
Fundamental Changes. MergeNone of the Lead Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (including, in each case, pursuant to a Delaware LLC Division), except that:
(a) Holdings or any Restricted Subsidiary may merge merge, amalgamate or consolidate with the Parent (i) a Borrower (including a merger, the purpose of which is to reorganize the Parent such Borrower into a new jurisdiction); provided that (x) the Parent such Borrower shall be the continuing or surviving Person, (y) Person and such merger or consolidation does not result in the Parent such Borrower ceasing to be incorporated (1) with respect to the Lead Borrower, organized under the Laws laws of Bermuda or the United States, any state thereof or the District of Columbia and (z2) in with respect to the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Other Borrower and, after giving effect to such merger or consolidationParty, the direct parent United States, any state thereof or the District of Columbia, (ii) the Parent Lead Borrower shall expressly assume all the obligations of Holdings under this Agreement and the or (iii) one or more other Loan Documents to which Holdings Restricted Subsidiaries; provided that when any Person that is a party pursuant to Loan Party is merging with a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent andRestricted Subsidiary, for the avoidance of doubt, the Equity Interests of the Parent Borrower a Loan Party shall be pledged as Collateralthe continuing or surviving Person;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower 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 (x) if the Parent Lead Borrower determines in good faith that such action is in the best interests interest of the Parent Lead Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than Section 7.02(e)) or Section 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Lead Borrower or another any other Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan PartyGuarantor, then (i) the transferee must be a U.S. Guarantor or a Borrower or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party or Foreign Loan Partyin accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (iI) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent each Borrower may merge or consolidate with any other Person; provided that (i) the Parent such Borrower shall be the continuing or surviving corporation or company or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent a Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized, (i) with respect to the Lead Borrower, organized or existing under the laws of Bermuda or the United States, any state thereof, thereof or the District of Columbia and (i) with respect to the Other Borrower Party, the United States, any state thereof or any territory thereofthe District of Columbia, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent applicable Borrower under this Agreement and the other Loan Documents to which the Parent such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations Guaranty shall apply to the Successor Parent Borrower’s obligations under this Agreementthe Loan Documents, (D) each Loan PartyGuarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreementthe Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement the Loan Documents, and (F) the Parent Lead Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent applicable Borrower under this Agreement;; and
Appears in 2 contracts
Sources: Credit Agreement (Bumble Inc.), Credit Agreement (Bumble Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
Appears in 2 contracts
Sources: Credit Agreement (Clear Channel Communications Inc), Credit Agreement (C C Media Holdings Inc)
Fundamental Changes. Merge, dissolve, liquidate, amalgamate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, (other than in the case of clause (e) below) so long as no Event of Default would result therefrom:
(ai) Holdings or any Restricted Subsidiary of Holdings Topco may merge merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdictionjurisdiction in any State of the United States); provided that (x) the Parent Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower pursuant to documents reasonably acceptable to the Administrative Agent and the Borrower (or, if not the Borrower, the surviving Person, (y) such merger shall be a corporation or consolidation does not result in the Parent Borrower ceasing to be incorporated a limited liability company organized under the Laws laws of the United States, any state thereof or the District of Columbia and Columbia, (zii) in the case of a merger or consolidation any Restricted Subsidiary of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation Topco (other than the Parent Borrower andor any of the Borrower’s Restricted Subsidiaries) may merge, after giving effect to such merger amalgamate or consolidationconsolidate with Holdings Topco (including a merger, the direct parent purpose of which is to reorganize Holdings Topco into a new jurisdiction in any State of the Parent Borrower United States); provided that Holdings Topco shall be the continuing or surviving Person or the surviving Person shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party Topco pursuant to a supplement hereto or thereto in form documents reasonably satisfactory acceptable to the Administrative Agent andand Holdings Topco (or, for the avoidance of doubtif not Holdings Topco, the Equity Interests surviving Person) shall be a corporation or a limited liability company organized under the laws of the Parent Borrower shall be pledged as Collateral;
United States, any state thereof or the District of Columbia, (iiii) any Restricted Subsidiary of Holdings (other than the Borrower or any of the Borrower’s Restricted Subsidiaries) may merge, amalgamate or consolidate with any one or more other Restricted Subsidiaries of Holdings (other than the Borrower or any of the Borrower’s Restricted Subsidiaries), or (iv) any Restricted Subsidiary of the Borrower may merge, amalgamate or consolidate with any one or more other Restricted Subsidiaries of the Borrower; provided that when any Guarantor is merging with another Restricted Subsidiary that is not a Loan Party may merge (A) the Guarantor shall be the continuing or consolidate with surviving Person, (B) to the extent constituting an Investment, such Investment must be a Permitted Investment (without giving effect to clauses (17) and (18) thereof) or into any other Indebtedness of a Restricted Subsidiary of the Parent Borrower that which is not a Loan Party in accordance with
Section 7.01 respectively and (iiC) to the extent constituting a Disposition, such Disposition must be permitted hereunder;
(b) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Restricted Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Parent Borrower determines in good faith that such action is in the best interests interest of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the LendersLenders in any material respect (it being understood that in the case of any dissolution of a Restricted Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another to any direct or indirect Restricted SubsidiarySubsidiary of the Borrower; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan PartyGuarantor, then (i) the transferee must either be the Borrower or a Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent and (ii) to the extent constituting an Investment, such Investment must be a U.S. Permitted Investment or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Section 7.01, respectively; provided, further, that the Borrower may Dispose of all or Foreign substantially all of its assets (upon voluntary liquidation or otherwise) to any other Loan Party, as the case may beParty (other than Holdings);
(d) (i) so long as no Default exists any Restricted Subsidiary may merge, amalgamate or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger consolidate with, or consolidation in accordance with Section 1.10dissolve into, the Parent Borrower may merge with any other PersonPerson in order to effect Permitted Investment; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or Person shall, to the extent subject to the terms hereof, have complied with the requirements of Section 6.12, (ii) if 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) [reserved];
(f) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents in order to which the Parent Borrower is effect a party Disposition permitted pursuant to Section 7.04 (other than Dispositions permitted by this Section 7.03); and
(g) any Permitted Investment may be structured as a supplement hereto merger, consolidation or thereto in form reasonably satisfactory to the Administrative Agentamalgamation, (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 so long as no Event of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;Default would result therefrom.
Appears in 2 contracts
Sources: Subordination Agreement (KLDiscovery Inc.), Subordination Agreement (KLDiscovery Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or Neither the Company nor any Restricted Subsidiary may Borrower shall merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate Person or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets to any Person unless (upon voluntary liquidation or otherwiseA) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Event of Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for continuing after giving effect to such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that transaction and (iB)(x) the Parent such Borrower shall be the continuing or surviving corporation entity or (iiy)
(1) if the Person formed by or surviving any such merger or consolidation is not consolidation, or the Parent Borrower (any transferee of such Personassets, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, or the District of Columbia (or, in the case of any Subsidiary Borrower organized outside of the United States, the jurisdiction of incorporation of such Subsidiary Borrower or any territory thereof, (Bother Foreign Subsidiary Borrower) the Successor Parent Borrower shall that expressly assume assumes all the obligations of the Parent such Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form amendment to the Loan Documents reasonably satisfactory to the Administrative Agent, (C2) the Company and the Parent and, prior to the Collateral Release Date or during any Reinstated Guarantee Period, each GuarantorSubsidiary Guarantor shall have reaffirmed its obligations under the Loan Documents and (3) the Administrative Agent shall have received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the Administrative Agent and consistent with the opinions delivered on the Closing Date with respect to such Borrower; provided, that, so long as no Obligations are owed (or in the case of Letters of Credit, as long as such Obligations are Collateralized) by the applicable Subsidiary Borrower, the Company may elect for such Subsidiary to cease to be a “Borrower” hereunder pursuant to Section 10.1(d) hereof and, thereafter, such Subsidiary shall not be subject to the restrictions contained in this paragraph.
(b) Prior to the Collateral Release Date or during any Reinstated Guarantee Requirement Period, no Subsidiary Guarantor shall merge or consolidate with any other Person or dispose of all or substantially all of its assets to any Person unless it is (i) the other party to Company or another Subsidiary Guarantor shall be the continuing entity or shall be the transferee of such assets, (ii)(A) the Person formed by or surviving such merger or consolidation, or the transferee of such assets, shall have by be an entity organized or existing under the laws of the United States, any state thereof, or the District of Columbia that expressly assumes all the obligations of such Subsidiary Guarantor under the Loan Documents pursuant to a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement amendment to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument Loan Document reasonably satisfactory to the Administrative Agent, (B) confirmed that the Company, the Parent and each then-remaining Subsidiary Guarantor shall have reaffirmed its obligations thereunder shall apply to under the Successor Parent Borrower’s obligations under this Agreement Loan Documents and (FC) the Parent Borrower Administrative Agent shall have delivered received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the Administrative Agent and consistent with the opinions delivered on the Closing Date with respect to such Subsidiary Guarantor, or (iii) in connection with an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;asset sale not prohibited by Section 7.5.
Appears in 2 contracts
Sources: Revolving Credit Agreement (General Motors Financial Company, Inc.), Revolving Credit Agreement (General Motors Co)
Fundamental Changes. Merge(a) No Loan Party will, nor will it permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or otherwise Dispose of all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, liquidateexcept that, consolidate with if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) any Person (other than the Borrower) may merge into or into another Personbe consolidated with, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor the stock of any Personof its Subsidiaries to, except that:
the Borrower in a transaction in which the Borrower is the surviving entity or transferee, (aii) Holdings or any Restricted Subsidiary Person (other than the Borrower) may merge into or consolidate with be consolidated with, or Dispose of all or substantially all of its assets or the Parent Borrower (including stock of any of its Subsidiaries to, any other Loan Party in a mergertransaction in which the surviving entity or transferee is a Loan Party, the purpose of which and if any such Loan Party is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower Domestic Subsidiary, such Domestic Subsidiary shall be the continuing surviving entity or surviving Persontransferee, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(iiii) any Restricted Subsidiary that is not a Loan Party may merge into or consolidate be consolidated with or into any other Restricted Subsidiary, provided that Domestic Subsidiaries may not merge into Foreign Subsidiaries unless the Domestic Subsidiary of is the Parent Borrower surviving entity, (iv) any Subsidiary may merge into or be consolidated with a Person that is not a Loan Party if after giving effect to such merger, such Person becomes a wholly-owned Subsidiary of the Borrower and a Loan Party, provided that no Domestic Subsidiary may merge into a Foreign Subsidiary unless the Domestic Subsidiary is the surviving entity, (iiv) any Restricted Subsidiary may liquidate into the Borrower or any other Subsidiary or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if 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. Anything in this Section to the contrary notwithstanding, in no event may the Borrower or a Domestic Subsidiary merge into or be consolidated with a Foreign Subsidiary, unless the Borrower or Domestic Subsidiary is the surviving entity.
(b) No Loan Party will, nor will it permit any Subsidiary to, engage in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Effective Date and any business activities that are substantially similar, related or incidental thereto, including cloud services.
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. No Loan Party will, nor will it permit any Subsidiary to change its fiscal year or a Foreign Loan Party, then any fiscal quarter from the transferee must be a U.S. Loan Party or Foreign Loan Party, as basis in effect on the case may be;Effective Date.
(d) No Loan Party will change the accounting basis upon which its financial statements are prepared, other than due to changes required by GAAP or any Requirement of Law.
(ie) so long No Loan Party will, nor will it permit any Subsidiary to, consummate a Division as no Default exists the Dividing Person, without the prior written consent of the Administrative Agent (at the direction of the Required Lenders). Without limiting the foregoing, if any Loan Party that is a limited liability company consummates a Division (with or would result therefrom without the prior consent of Lender as required above), each Division Successor shall be required to comply with the obligations set forth in Section 5.14 and the Parent Borrower shall be other further assurances obligations set forth in compliance with Section 7.14 for the Test Period then last ended calculated on Loan Documents and become a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower Loan Party under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;Documents.
Appears in 2 contracts
Sources: Subordinated Credit Agreement (F45 Training Holdings Inc.), Subordinated Credit Agreement (F45 Training Holdings Inc.)
Fundamental Changes. Merge, dissolve, liquidate, amalgamate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or (i) any Restricted Subsidiary of Holdings may merge merge, amalgamate, dissolve, liquidate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdictionjurisdiction in any State of the United States or the District of Columbia); provided that (x) the Parent Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower pursuant to documents reasonably acceptable to the Administrative Agent and the Borrower (or, if not the Borrower, the surviving Person, (y) such merger and shall be a corporation or consolidation does not result in the Parent Borrower ceasing to be incorporated a limited liability company organized under the Laws laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may merge, amalgamate, dissolve, liquidate or dissolve consolidate with any one or more other Restricted Subsidiaries;
(b) the Borrower or any Restricted Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Parent Borrower determines in good faith that such action is in the best interests interest of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the LendersLenders in any material respect (it being understood that in the case of any dissolution of a Restricted Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another to any Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan PartyGuarantor, then (i) the transferee must either be the Borrower or be or become a U.S. Loan Party Guarantor or Foreign (ii) to the extent constituting an Investment, such Investment must be an Investment not prohibited hereunder; provided further that the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Loan Party, as the case may be;
(d) (i) so long as no Default exists any Restricted Subsidiary may merge, amalgamate or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger consolidate with, or consolidation in accordance with Section 1.10liquidate or dissolve into, the Parent Borrower may merge with any other PersonPerson in order to effect an Investment; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or Person shall, to the extent required by the terms hereof, have complied with the requirements of Section 6.12, (ii) if to the Person formed by or surviving any extent constituting an Investment, such merger or consolidation is Investment must be an Investment not prohibited hereunder and (iii) to the Parent Borrower extent constituting a Disposition, such Disposition must be permitted hereunder;
(any such Person, the “Successor Parent Borrower”), (Ae) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents Restricted Subsidiaries may consummate the Transactions and any Transition Arrangements;
(f) any Restricted Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in order to which the Parent Borrower is effect a party Disposition permitted pursuant to Section 7.04; and
(g) any Investment may be structured as a supplement hereto merger, consolidation or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;amalgamation.
Appears in 2 contracts
Sources: First Lien Credit Agreement (V2X, Inc.), First Lien Credit Agreement (V2X, Inc.)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary to, liquidatedirectly or indirectly, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries if at the time of such merger or consolidation other than the Parent Borrower and, thereof and immediately after giving effect to such merger thereto no Default or consolidation, the direct parent Event of the Parent Borrower Default shall expressly assume all the obligations of Holdings under this Agreement have occurred and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
continuing (i) any Restricted wholly owned Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that in a transaction in which the Borrower is not a Loan Party the surviving corporation, and (ii) any Restricted wholly owned Subsidiary may liquidate merge with or dissolve into any wholly owned Subsidiary in a transaction in which the surviving entity is a Subsidiary and (if any party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party; provided that in connection with the foregoing, the appropriate Loan Parties shall take all actions necessary or change its legal form if reasonably requested by the Parent Borrower determines Collateral Agent to maintain the perfection or perfect, as the case may be, protect and preserve the Liens on the Collateral granted to the Collateral Agent pursuant to the Security Documents and otherwise comply with the provisions of Sections 5.11 and 5.12, in good faith that such action is in each case, on the best interests terms set forth therein and to the extent applicable.
(b) Notwithstanding the foregoing, any Subsidiary of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) may dispose of any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; any Subsidiary Loan Party (provided that if in connection with the transferor in such a transaction is a U.S. foregoing, the appropriate Loan Party Parties shall take all actions necessary or a Foreign Loan Party, then reasonably requested by the transferee must be a U.S. Loan Party Collateral Agent to maintain the perfection or Foreign Loan Partyperfect, as the case may be;, protect and preserve the Liens on the Collateral granted to the Collateral Agent pursuant to the Security Documents and otherwise comply with the provisions of Sections 5.11 and 5.12, in each case, on the terms set forth therein and to the extent applicable), and any Subsidiary which is not a Subsidiary Loan Party may dispose of assets to any other Subsidiary which is not a Subsidiary Loan Party.
(dc) (i) so long as no Default exists The Borrower will not, and will not permit any of its Subsidiaries to, directly or would result therefrom and the Parent Borrower shall be indirectly, engage in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any business other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws than businesses of the United States, any state thereof, type conducted by the District of Columbia or any territory thereof, (B) Borrower and its Subsidiaries on the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement Effective Date and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;related thereto.
Appears in 2 contracts
Sources: Credit Agreement (Constar Inc), Credit Agreement (Constar International Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of 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 Acquisition), except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, (1) Holdings shall not be an obligor in respect of any Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, (2) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower andBorrower, (3) no Default or Event of Default shall exist at such time or after giving effect to such merger or consolidation, (4) after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for and (5) such direct parent of the avoidance Borrower shall pledge 100% of doubt, the Equity Interests Interest of the Parent Borrower shall be pledged to the Administrative Agent as CollateralCollateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iiiv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders, provided, in the case of clauses (ii) through (iv), that (A) no Event of Default shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (x) the transferee must be a U.S. Loan Party or Foreign (y) to the extent constituting an Investment, such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Loan Party, as the case may beParty in accordance with Section 7.02 (other than Section 7.02(e));
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofColumbia, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) if requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement, and, with respect to such opinion of counsel only, including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, Holdings may merge or consolidate with any other Person; provided that (i) Holdings shall be the continuing or surviving Person or (ii) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”) (A) the Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia, (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) the Successor Holdings shall pledge 100% of the Equity Interest of the Borrower to the Administrative Agent as Collateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and (D) the Borrowers shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement and, with respect to such opinion of counsel only, including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(f) so long as no Default exists or would result therefrom (in the case of a merger or consolidation involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02 (other than Section 7.02(e)); provided that the continuing or surviving Person shall be (i) the Borrower or (ii) a Restricted Subsidiary (provided that if such Restricted Subsidiary is a Loan Party, then the continuing or surviving Person shall also be a Loan Party), in each case, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11;
(g) the Acquisition may be consummated on the Closing Date;
(h) the Post-Closing Mergers may be consummated; provided that (A) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto, (B) each Guarantor, unless it is the other party to such Post-Closing Mergers, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (C) each Loan Party, unless it is the other party to such Post-Closing Merger, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement (it being understood that the requirements of (A), (B) and (C) above need to be done only once by the ultimate Successor Borrower, the Guarantors and the Loan Parties upon consummation of the last merger specified in the definition of Post-Closing Mergers); and
(i) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e));
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Advantage Solutions Inc.), First Lien Credit Agreement (Advantage Solutions Inc.)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge merge, amalgamate or consolidate with the Parent Lead Administrative Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the Parent Lead Administrative Borrower into a new jurisdiction); provided that (x) the Parent Lead Administrative Borrower shall be the continuing or surviving Person, (y) such merger merger, amalgamation or consolidation does not result in (1) the Parent Lead Administrative Borrower ceasing to be organized or incorporated under the Laws of the United Statesits Local Covered Jurisdiction or (2) any Loan Party becoming an Excluded Subsidiary, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Lead Administrative Borrower shall continue to be directly owned by one or more Loan Parties and pledged as Collateral pursuant to the terms of the Collateral Documents;
(b) any Borrower may merge, amalgamate or consolidate with another Borrower (including a merger or amalgamation, the purpose of which is to reorganize a Borrower into a new jurisdiction); provided that (x) a Borrower (or, to the extent the Lead Administrative Borrower shall be a party to any such merger, amalgamation or consolidation, the Lead Administrative Borrower) shall be the continuing or surviving Person, (y) such merger, amalgamation or consolidation does not result in (1) a Borrower ceasing to be organized or incorporated under the Laws of a Covered Loan Party Jurisdiction or (2) any Loan Party becoming an Excluded Subsidiary, and (z) the Equity Interests of each Borrower shall continue to be directly owned by one or more Loan Parties and pledged as CollateralCollateral pursuant to the terms of the Collateral Documents;
(i) any Restricted Subsidiary of Holdings that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower Holdings that is not a Loan Party and Party, (ii) any Restricted Subsidiary of Holdings (other than the Lead Administrative Borrower) may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of Holdings that is a Loan Party (or, to the extent a Borrower shall be a party to any such merger, amalgamation or consolidation, a Borrower shall be a surviving or continuing entity), (iii) any merger or amalgamation the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction that is a Covered Loan Party Jurisdiction shall be permitted (provided that such Person and each of its Restricted Subsidiaries that is a Loan Party prior to such merger or amalgamation shall be a Loan Party after giving effect to such reincorporation or reorganization) and (iv) any Restricted Subsidiary of Holdings (other than the Lead Administrative Borrower) may wind-up, liquidate or dissolve or change its legal form if the Parent Lead Administrative Borrower determines in good faith that such action is in the best interests of the Parent Borrower Loan Parties and its their Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided that, in the case of clauses (ii) through (iv) of this Section 9.4(c), (A) no Event of Default shall have occurred and be continuing or shall result therefrom and (B) the surviving or continuing Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary) shall be a Loan Party (in the case of any such transaction involving a Guarantor) or a Borrower (in the case of any such transaction involving a Borrower), the Equity Interest of whom shall be directly owned by one or more Loan Parties and pledged as Collateral pursuant to the terms of the Collateral Documents;
(cd) any Restricted Subsidiary (other than a Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower a Loan Party or another Restricted Subsidiary; provided that (i) no Event of Default shall have occurred and be continuing or shall result therefrom and (ii) if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (1) the transferee must be a U.S. Loan Party or Foreign (2) such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Loan Party, as the case may beParty in accordance with Section 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 9.5;
(d) (ie) so long as no Default exists or Event of Default is continuing or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Lead Administrative Borrower may merge merge, amalgamate or consolidate with any other Person; provided that (i) the Parent Lead Administrative Borrower shall be the continuing or surviving corporation Person or (ii) if the Person formed by or surviving or continuing after any such merger merger, amalgamation or consolidation is not the Parent Lead Administrative Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws Laws of the United States, any state thereofLocal Covered Jurisdiction of the merging Lead Administrative Borrower, the District Equity Interests of Columbia which shall be directly owned solely by one or any territory thereofmore Loan Parties and pledged as Collateral pursuant to the terms of the Collateral Documents), (B) the such Successor Parent Borrower shall expressly assume all the obligations of the Parent Lead Administrative Borrower under this Agreement and the other Loan Documents to which the Parent Lead Administrative Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantorother Loan Party, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to this Agreement and the Guaranty Guaranty, confirmed that its Obligations (including its Guarantee of the Obligations Obligations) shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower Holdings shall have delivered (or caused to be delivered) to the Administrative Agent an officer’s (1) a certificate and an opinion of counsel, each stating a Responsible Officer certifying that such merger merger, amalgamation or consolidation consolidation, and any such supplement to this Agreement or any Collateral Document delivered in connection with any such merger, amalgamation or consolidation, comply with this AgreementAgreement and (2) a customary opinion of counsel, including customary organization, due execution and authority, enforceability and attachment and perfection opinions and such other customary opinions as reasonably requested by the Administrative Agent; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Lead Administrative Borrower under this AgreementAgreement and (F) the Administrative Agent shall have received, at least three (3) Business Days prior to such merger, amalgamation or consolidation, (1) all documentation and other information about the Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Proceeds of Crime Act, and (2) to the extent that any Successor Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification with respect to such Successor Borrower, in each case, that shall have been requested in writing at least ten (10) Business Days prior to the date of such merger, amalgamation or consolidation;
(f) so long as no Default or Event of Default is continuing or would result therefrom, any Restricted Subsidiary (other than the Lead Administrative Borrower) may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 9.2 (other than Section 9.2(e)); provided that the continuing or surviving Person shall be a Borrower or a Restricted Subsidiary, which together with each of their Restricted Subsidiaries, shall have complied with the applicable requirements of Sections 8.11, 8.12 and 8.13; and
(g) so long as no Default or Event of Default is continuing 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 9.5 (other than Section 9.5(e)). Any transaction permitted by any of Sections 9.4(a) through 9.4(g) made in reliance on an Specified Asset Disposition/Investment Provision shall be subject to compliance with Section 7.4(b).
Appears in 2 contracts
Sources: Credit Agreement (Signet Jewelers LTD), Credit Agreement (Signet Jewelers LTD)
Fundamental Changes. Merge(a) The Domestic Borrower will not, dissolveand will not permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries if at the time of such merger or consolidation other than the Parent Borrower and, thereof and immediately after giving effect to such merger or consolidation, the direct parent of the Parent Borrower thereto no Default shall expressly assume all the obligations of Holdings under this Agreement have occurred and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
continuing (i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Domestic Borrower that in a transaction in which the Domestic Borrower is not a Loan Party and the surviving corporation, (ii) any Restricted Subsidiary (other than a Subsidiary Borrower) may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary (provided that the Domestic Borrower's proportionate interest in the assets and business of the merged Subsidiary has not diminished), (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Domestic Borrower or to another Subsidiary (provided that the Domestic Borrower's proportionate interest in the assets sold, transferred, leased, or disposed of has not diminished), and (iv) any Subsidiary (other than a Subsidiary Borrower) may liquidate or dissolve or change its legal form if the Parent Domestic Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Domestic Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided, however, that if any assets (constituting Collateral) of any of the Collateral Grantor Subsidiaries will be sold, assigned, transferred or otherwise disposed of in any way by virtue of any of the actions otherwise permitted under any of the foregoing clauses (i) through (iv), the parties to such merger or other such action shall notify the Administrative Agent and shall take all steps reasonably required by the Administrative Agent to preserve the Collateral Agent's first priority perfected security interest in all such Collateral, prior to consummation of such action.
(b) The Domestic Borrower will not, and will not permit any Subsidiary to, sell, transfer, lease (as lessor) or otherwise dispose of (in one transaction or in any series of transactions) Equity Interests in any Subsidiary (whether owned on the Effective Date or thereafter acquired), or other assets of any kind, except for the following:
(i) sales of inventory in the ordinary course of business;
(ii) sales, conveyances and other transfers of accounts receivable permitted under Section 6.02(e);
(iii) transactions permitted under subsection (a) of this Section;
(iv) sales of obsolete equipment and other fixed assets sold in the normal course of business, provided that the net proceeds thereof are applied to the acquisition by the Domestic Borrower or a Subsidiary of operating assets used in the normal course of their business within 180 days from the date thereof (or, if such proceeds are received less than 180 days before the Maturity Date, provided that the Domestic Borrower can demonstrate to the reasonable satisfaction of the Administrative Agent that same will be so applied within such 180 day period);
(v) the sale of the Thousand Oaks Building; and
(vi) other sales, conveyances and other transfers of Equity Interests and assets of any kind, subject to an aggregate limit on the value of all such transfers under this clause (vi) of $25,000,000 during the 12-month period beginning on the Effective Date or on any anniversary thereof. Without limiting the foregoing, except as set forth above, neither the Domestic Borrower nor any Subsidiary shall sell, assign, discount or otherwise dispose of notes, accounts receivable or other rights to receive payment, with or without recourse, except for collections and credits in the ordinary course of business.
(c) The Domestic Borrower will not, and will not permit any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) Subsidiaries to, engage in any business other than businesses of the type conducted by the Domestic Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto except to an extent not material to the Parent Domestic Borrower or another Restricted Subsidiary; provided that if the transferor in such and its Subsidiaries taken as a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;whole.
(d) (i) so long as no Default exists or would result therefrom and The preceding paragraphs of this Section 6.03 shall not limit the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;Securitization Transactions.
Appears in 2 contracts
Sources: Credit Agreement (Volt Information Sciences Inc), Credit Agreement (Volt Information Sciences Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, or Dispose of (whether in one transaction or in effect a series of 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 or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that:
(xi) the Parent Borrower shall be the continuing or surviving Person, ; and
(yii) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralColumbia;
(ib) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary or liquidate or dissolve;
(c) any merger the purpose of the Parent Borrower that which is not to reincorporate or reorganize a Loan Party and Restricted Subsidiary in another jurisdiction shall be permitted;
(iid) 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 Parent Borrower determines in good faith that surviving Person (or the Person who receives the assets of such action is in the best interests of the Parent Borrower and its dissolving or liquidated Restricted Subsidiaries and if not materially disadvantageous to the LendersSubsidiary) shall be a Restricted Subsidiary;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (ie) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with any other Person; provided that that:
(i) the Parent Borrower shall be the continuing or surviving corporation or corporation; or
(ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), ;
(A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof, Columbia;
(B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, ;
(C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, ;
(D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, ;
(E) if requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and Agreement; and
(F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement, and, with respect to such opinion of counsel only, including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; provided, further, it being agreed that if the foregoing are satisfied, the Successor Parent Borrower ▇▇▇▇▇▇▇▇ will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(f) any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment, Acquisition Transaction or other transaction not prohibited by the Loan Documents;
(g) any Loan Party or any Restricted Subsidiary may conduct a Division that produces two or more surviving or resulting Persons; provided that
(i) if a Division is conducted by the Borrower, then each surviving or resulting Person shall constitute a “Borrower” for all purposes of the Loan Documents (unless the Administrative Agent otherwise consents in its reasonable discretion) and shall remain jointly and severally liable for all Obligations (other than Excluded Swap Obligations, where applicable) of the Borrower immediately prior to such Division and otherwise comply with Section 7.04(e); and
(ii) if a Division is conducted by a Loan Party other than the Borrower, then each surviving or resulting Person of such Division shall also be a Loan Party unless and to the extent any such surviving or resulting Loan Party is the subject of a Disposition permitted pursuant to Section 7.05 (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)(ii) solely to the extent permitted under Section 7.02; and
(h) as long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)). Notwithstanding anything herein to the contrary, in the event of any merger, dissolution, liquidation, consolidation, amalgamation or Division of any Loan Party or a Restricted Subsidiary effected in accordance with this Section 7.04, the Borrower shall or shall cause, with respect to each surviving Restricted Subsidiary (a) promptly deliver or cause to be delivered to the Administrative Agent for further distribution by the Administrative Agent to each Lender (i) such information and documentation reasonably requested by the Administrative Agent or any Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) a Beneficial Ownership Certification and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent or Collateral Agent may reasonably request in order to perfect or continue the perfection of the Liens granted or purported to be granted by the Collateral Documents in accordance with Section 6.11 and as promptly as practicable.
Appears in 2 contracts
Sources: First Amendment (Allegro Microsystems, Inc.), Credit Agreement (Allegro Microsystems, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall not be an obligor in respect of any Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iiiv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) through (iv) of this paragraph (b), that (A) no Event of Default shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Loan Party, as the case may beParty in accordance with Section 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 9.5;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) [reserved];
(f) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 9.2 (other than Section 9.2(e)); provided that 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 Sections 8.11, 8.12 and 8.13;
(g) the Merger may be consummated; and
(h) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 9.5 (other than Section 9.5(e)).
Appears in 2 contracts
Sources: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Fundamental Changes. MergeThe Borrower shall not, nor shall it permit any Restricted Subsidiary to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, Person or Dispose of (whether reorganize itself in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Personnon-U.S. jurisdiction, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a mergeri) any Loan Party, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower Loan Party shall be the continuing or surviving Person, Person or (yii) such merger any one or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation more other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralSubsidiaries;
(ib) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower Borrower, the Guarantor or another Restricted Subsidiary; provided ;
(c) Investments that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must are permitted under Section 7.02 shall be a U.S. Loan Party or Foreign Loan Party, as the case may bepermitted under this Section 7.04;
(d) any dispositions of assets or mergers, dissolutions, liquidations or consolidations with another Person made in order to effect the Permitted Reorganization; and
(ie) so long as no Default exists any Restricted Subsidiary or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge or consolidate with any other PersonPerson that is not a Subsidiary in connection with an Investment permitted under Section 7.02; provided that (i) in the Parent case of a merger or consolidation involving the Borrower, (A) the Borrower shall be the continuing or surviving corporation Person or (iiB) if the Person formed by or surviving any such merger or consolidation is not the Parent a Borrower (any such Person, the “Successor Parent Borrower”), (A1) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United StatesU.S., any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B2) the Successor Parent Borrower shall expressly assume all of the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent and (3) the Guarantor shall expressly reaffirm its Guarantee of the Obligations pursuant to a supplement in form and substance reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is ; provided that the Borrower agrees to provide any documentation and other party to such merger or consolidation, information about the Successor Borrower as shall have been reasonably requested in writing by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to any Lender through the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation and (ii) in the case of any merger or consolidation involving the Guarantor and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if a Restricted Subsidiary and not involving the foregoing are satisfiedBorrower, the Successor Parent Borrower will succeed to, and continuing or surviving Person must be substituted for, the Parent Borrower under this Agreement;Guarantor (or become the Guarantor upon the consummation thereof).
Appears in 2 contracts
Sources: Credit Agreement (Istar Inc.), Credit Agreement (Safehold Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of 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) Holdings or any Restricted Subsidiary may merge merge, amalgamate or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall not be an obligor in respect of any Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Parent Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Non-Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iiiv) any Restricted Subsidiary (other than the Parent Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), (A) no Event of Default shall result therefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Loan Party) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign Loan Party(ii) to the extent constituting an Investment, as the case may besuch Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii)) or a Permitted Investment;
(d) (i) so long as no Default exists has occurred and is continuing or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default has occurred and is continuing or would result therefrom, Holdings may merge or consolidate with any other Person; provided that (i) Holdings shall be the continuing or surviving Person or (ii) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”), (A) the Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(f) so long as no Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xviii)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Parent Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11;
(g) the Merger, related transactions contemplated by the Merger Agreement (and documents related thereto) and the Transaction may be consummated; and
(h) so long as no Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 2 contracts
Sources: Credit Agreement (Par Pharmacuetical, Inc.), Credit Agreement (Par Pharmacuetical, Inc.)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Restricted Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (ai) Holdings or any Restricted Subsidiary Person may merge into or consolidate with the Parent Borrower (including in a merger, the purpose of transaction in which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower is the surviving entity or (y) the other party is the surviving entity of such merger (in such event, such surviving entity shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent “Successor Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i”) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity is organized or existing under the laws of the United States, any state thereof, the District States of Columbia or any territory thereofAmerica, (B) the Successor Parent Borrower shall expressly assume all assumes the Borrower’s obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto thereto, as applicable, in form and substance reasonably satisfactory to the Administrative Agent, (C) the Successor Borrower shall deliver to the Administrative Agent and each GuarantorLender (1) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, unless it is including the other party to USA PATRIOT Act that has been reasonably requested by the Administrative Agent or such merger or consolidationLender and (2) if the Successor ▇▇▇▇▇▇▇▇ qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Administrative Agent and each Lender shall have by a supplement received, to the Guaranty confirmed that its Guarantee extent reasonably requested by the Administrative Agent or such Lender, a Beneficial Ownership Certification in respect of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, Borrower and (D) each Subsidiary Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Collateral Agreement and, if reasonably requested by the Administrative Agent, each other Security Agreement Document to which such Subsidiary Loan Party is a party confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counselit being understood that, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing conditions in clauses (A) through (D) are satisfied, then the Successor Parent Borrower will automatically succeed to, and be substituted for, the Parent Borrower under this Agreement;), (ii) any Person (other than the Borrower) may merge into or consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary and, if any party to such merger or consolidation is a Subsidiary Loan Party, the surviving entity is or becomes a Subsidiary Loan Party, (iii) any Restricted Subsidiary may merge into or consolidate with any Person (other than the Borrower) in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Restricted Subsidiary, and (iv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution or change in legal form is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that any such liquidation, dissolution or change involving a Person that is not a wholly-owned Restricted Subsidiary immediately prior to such liquidation, dissolution or change shall not be permitted unless it is also permitted by Section 6.04; provided, further, that in connection with any such liquidation or dissolution of a Loan Party, the assets of such Loan Party shall be transferred to another Loan Party.
(b) The Borrower will not, and will not permit any Restricted Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Restricted Subsidiaries on the Effective Date and businesses reasonably related, complementary or ancillary thereto or a reasonable extension or expansion thereof as determined by the Borrower in good faith.
Appears in 2 contracts
Sources: Credit Agreement (YETI Holdings, Inc.), Credit Agreement (YETI Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, (a) The Loan Parties will not merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries if at the time of such merger or consolidation other than the Parent Borrower and, thereof and immediately after giving effect to such merger thereto no Default or consolidationEvent of Default shall have occurred and be continuing, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party Facility Guarantor may merge or consolidate with or into any other Restricted Subsidiary of Facility Guarantor, provided that in any such transaction involving the Parent, the Parent Borrower that is not a Loan Party shall be the surviving entity, and (ii) mergers may take place in connection with Permitted Acquisitions, and (iii) any Restricted Subsidiary Facility Guarantor (other than the Parent) may liquidate or dissolve voluntarily into the Parent, further provided that neither the Parent nor any of its Subsidiaries shall be required to preserve any right, permit, license, approval, privilege or change its legal form franchise if the Parent Borrower determines in good faith that such action is in the best interests board of directors of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to or the Lenders;
(cboard of directors, board of members, manager(s) any Restricted or general partners, as applicable, of such Subsidiary may Dispose shall determine that the presentation thereof is no longer desirable in the conduct of all or substantially all the business of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted such Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;, and the loss thereof could not reasonably be expected to result in a Material Adverse Effect.
(db) The Loan Parties will not engage, to any material extent, in any business other than businesses substantially the same as, reasonably related to, or complementary to one or more lines of business conducted by the Loan Parties on the date of execution of this Agreement (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be as, for example, retail stores with inventory categories comparable to those in compliance Borrower’s existing stores but in formats with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Persondifferent retail pricing structures); provided that any Inventory in such stores shall not be considered Eligible Inventory unless and until the Collateral Agent has completed an appraisal of such Inventory, establishes an advance rate and Inventory Reserves (iif applicable) the Parent Borrower therefor, and otherwise agrees that such Inventory shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;deemed Eligible Inventory.
Appears in 1 contract
Sources: Credit Agreement (Stage Stores Inc)
Fundamental Changes. Merge(a) The Borrower may not consolidate, dissolve, liquidate, consolidate merge or amalgamate with or into another Person, or Dispose of wind up into (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Personnot the Borrower is the surviving corporation), except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto Borrower may not sell, assign, transfer, lease, convey or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose otherwise dispose of all or substantially all of the properties or assets of the Borrower and its assets (upon voluntary liquidation Restricted Subsidiaries, taken as a whole, in one or otherwise) more related transactions, to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;any Person unless:
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be is the continuing or surviving corporation or (ii) if the Person formed by or surviving any such consolidation, merger or consolidation amalgamation (if other than the Borrower) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofthereof (such Person, the “Successor Company”);
(Bii) the Successor Parent Borrower shall Company, if other than the Borrower, expressly assume assumes all the obligations Obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form documentation reasonably satisfactory to the Administrative Agent, ; and
(Ciii) each Subsidiary Guarantor, unless it is the other party to such merger or consolidationthe transactions described above, in which case clause (i)(B) of Section 6.04(c) shall apply, shall have by a supplement to the Guaranty confirmed that its Guarantee of Obligations under the Obligations shall apply applicable Loan Documents to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless which it is the other a party pursuant to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument documentation reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the ; The Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower Company will succeed to, and be substituted forfor the Borrower under the Loan Documents.
(b) Subject to the other provisions of Section 6.04(a),
(i) a Restricted Subsidiary may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to (A) the Borrower or any other Restricted Subsidiary or (B) any other Person so long as the transaction does not violate Section 6.05; and
(ii) the Borrower may merge with an Affiliate of the Borrower solely for the purpose of reorganizing the Borrower in a different State of the United States, so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not increased thereby.
(c) No Subsidiary Guarantor will, and the Borrower will not permit any Subsidiary Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not the Borrower or a -133- WEIL:\96480003\20\34471.0013 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) (A) such Subsidiary Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation, merger or amalgamation (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or the laws of the United States, any state thereof, the Parent Borrower under this Agreement;District of Columbia, or any territory thereof (such Subsidiary Guarantor or Person, the “Successor Subsidiary Person”); and
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings Parent or any Restricted Subsidiary may merge or consolidate with (i) the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings Parent with and into the Parent Borrower, Holdings Parent shall have no direct Subsidiaries at the time of such merger Merger other than Foreign Holdings or consolidation Holdings, or (ii) Parent or any one or more other Restricted Subsidiaries other than the Borrower; provided that (i) when Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings any Restricted Subsidiary that is a party pursuant to Loan Party is merging with another Restricted Subsidiary, a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower Loan Party shall be pledged as Collateralthe continuing or surviving Person and (ii) in the case of a merger of Parent with another Restricted Subsidiary, Parent shall have no direct Subsidiaries at the time of such Merger other than Foreign Holdings or Holdings; provided, further that if a Specified Foreign Subsidiary is merging with another Restricted Subsidiary that is not a Subsidiary of Holdings, such surviving Person shall be a Guarantor;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (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 PartyParty in accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that 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;
(f) the Merger may be consummated;
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(h) so long as no Default shall have occurred and be continuing or (in the case of the Foreign Reorganization) would result therefrom, the Foreign Reorganization and any Permitted Intercompany Transfer may be consummated.
Appears in 1 contract
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge merge, amalgamate or consolidate with a Borrower and Holdings may merge, amalgamate or consolidate with the Parent Borrower (in each case including a mergermerger or amalgamation, the purpose of which is to reorganize the Parent a Borrower into a new jurisdiction); provided that (x) the Parent such Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent such Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger merger, amalgamation or consolidation other than the Parent Borrower and, after giving effect to such merger merger, amalgamation or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(b) (i) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary (other than the Co-Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary (other than the Co-Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) to the extent constituting an Investment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Subsidiary which is not a Loan PartyParty in accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent either Borrower may merge with any other Person; provided that (i) the Parent such 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 Parent a Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent such Borrower under this Agreement and the other Loan Documents to which the Parent such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the applicable Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent such Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent such Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary (other than the Co-Borrower) may merge or consolidate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.02 or (ii) for any other purpose; provided that (A) the continuing or surviving Person shall be a Borrower or a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the applicable requirements of Section 6.11; 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 Administrative Agent;
(f) the Acquisition and the Reorganization may be consummated; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 1 contract
Sources: Credit Agreement (Axcan Intermediate Holdings Inc.)
Fundamental Changes. MergeThe Lead Borrower will not, nor will it permit any other Borrower or any Subsidiary Facility Guarantor to, merge, amalgamate, dissolve, liquidate, wind up, consolidate with or into another Person, or Dispose dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge merge, consolidate or consolidate amalgamate with the Parent or into, (i) any Borrower (including a merger, consolidation or amalgamation, the purpose of which is to reorganize such Borrower into a new jurisdiction); provided that such Borrower shall be the continuing or surviving Person or (ii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging, consolidating or amalgamating with or into another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person, except to the extent otherwise constituting an Investment permitted by SECTION 6.02 (other than SECTION 6.02(e));
(b) the Lead Borrower may merge, consolidate or amalgamate with or into, any Person (including a merger, consolidation or amalgamation, the purpose of which is to reorganize the Parent Lead Borrower into a new jurisdiction); provided that (xA) the Parent Lead Borrower shall be the continuing or surviving Person, or (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (iB) so long as no Event of Default exists has occurred and is continuing or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger merger, consolidation or consolidation amalgamation is not the Parent Lead Borrower (any such other Person, the “Successor Parent Lead Borrower”), (A1) the Successor Parent Lead Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B2) the Successor Parent Lead Borrower shall expressly assume all the obligations of the Parent Lead Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is in a party manner and pursuant to a supplement hereto or thereto in form documentation reasonably satisfactory to the Administrative Agent, (C3) each GuarantorFacility Guarantor or a Borrower, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by execution of a supplement to its Facility Guarantee confirmed that its Guarantee thereunder shall apply to any Successor Lead Borrower’s obligations under this Agreement, (4) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to the Guaranty confirmed any applicable Security Document affirmed that its Guarantee of the Obligations obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreementits Facility Guarantee as reaffirmed pursuant to clause (3), (D5) each Loan Partymortgagor pursuant to a Mortgage, if any, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to each Security Agreement confirmed affirmed that its obligations thereunder under such Mortgage shall apply to its Facility Guarantee as reaffirmed pursuant to clause (3) and (6) the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Lead Borrower shall have delivered to the Administrative Agent (x) an officer’s certificate of a Responsible Officer stating that such merger, amalgamation, or consolidation complies with the applicable requirements set forth in this clause (b), (y) at least two Business Days prior to the closing date of such merger, amalgamation or consolidation all documentation and other information about Successor Lead Borrower as has been reasonably requested in writing by the Administrative Agent that it reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (z) if reasonably requested by the Administrative Agent, an opinion of counselcounsel as to corporate matters and to the effect that the provisions set forth in the preceding clauses (3) through (5), each stating preserve the enforceability of the Facility Guarantee and the perfection of the Liens created under the applicable Security Documents;
(i) any Subsidiary that is not a Loan Party may merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party, (ii) any Loan Party may merge, amalgamate or consolidate with or into any other Loan Party, provided that if a Borrower is a party thereto, a Borrower shall be the continuing or surviving Person and (iii) any Subsidiary may liquidate, wind up or dissolve if the Lead Borrower determines in good faith that such merger or consolidation action is in the best interests of the Lead Borrower and such supplement its Subsidiaries and if not materially disadvantageous to this Agreement or any Collateral Document comply with this Agreementthe Lenders; provided, furtherthat with respect to this clause (b)(iii), a certificate of a Responsible Officer shall be delivered to the Administrative Agent at least five Business Days (or within such shorter period as the Administrative Agent shall agree in writing, in its sole discretion) prior to the liquidation, winding up or dissolution, together with a reasonably detailed description of the material terms and conditions thereof, stating that the Lead Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement;
(d) 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 foregoing are satisfiedtransferor in such a transaction is a Loan Party, then (i) the transferee must be another Loan Party, or (ii) to the extent constituting an Investment, such Investment must be a Permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with SECTION 6.02 and SECTION 6.03, respectively;
(e) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect a Permitted Investment; provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of SECTION 5.11; and
(f) the Lead Borrower and its Restricted Subsidiaries may consummate a merger, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;purpose of which is to effect a Permitted Disposition.
Appears in 1 contract
Fundamental Changes. Merge(a) Neither Parent nor the Borrower will, dissolvenor will they permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries if at the time of such merger or consolidation other than the Parent Borrower and, thereof and immediately after giving effect to such merger or consolidation, the direct parent of the Parent Borrower thereto no Default shall expressly assume all the obligations of Holdings under this Agreement have occurred and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
continuing (i) any Restricted Subsidiary that is not (other than a Loan Party License Subsidiary) may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that in a transaction in which the Borrower is not a Loan Party and the surviving corporation, (ii) any Restricted Person (other than a License Subsidiary) may merge with or into or consolidate with any Subsidiary (other than a License Subsidiary) in a transaction in which the surviving entity is a Subsidiary and (if any party to such merger is a Subsidiary Loan Party) the surviving entity is a Subsidiary Loan Party, (iii) any Subsidiary may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it in any sale or other disposition permitted under Section 6.05, (iv) any Subsidiary (other than a License Subsidiary or other Subsidiary Loan Party) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;, (v) ACS Television, L.L.C. and ACS Television License Sub, Inc. may liquidate or dissolve within 180 days of the Effective Date, provided that (x) at the time of such liquidation or dissolution, ACS Television, L.L.C. or ACS Television License Sub, Inc., as applicable, has no assets other than the assets held by it on the Effective Date and (y) the Borrower determines in good faith that
(b) The Borrower will not, and will not permit any of the Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.
(c) Parent will not engage in any Restricted Subsidiary may Dispose business or activity other than the ownership of all the outstanding shares of capital stock of the Borrower, the issuance of the Parent Discount Debentures and activities incidental thereto, including rental payments, computer services, professional and consultant services, investment services, printing, travel and other miscellaneous services. Parent will not own or substantially all of its acquire any assets (upon voluntary liquidation other than shares of capital stock of the Borrower, cash and Permitted Investments) or otherwise) to incur any liabilities (other than liabilities under the Loan Documents, liabilities imposed by law, including tax liabilities, liabilities under the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;Discount Debentures and other liabilities incidental to its existence and permitted business and activities).
(d) No License Subsidiary will engage in any business or activity other than holding the applicable Operating License and activities incidental thereto.
(ie) so long as no Default exists No License Subsidiary will sell, transfer, lease or would result therefrom and the Parent Borrower shall be otherwise dispose of any Operating License or any Authorization.
(f) ACS Media Holdings will not engage in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger any business or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any activity other Person; provided that than (i) the Parent Borrower shall be the continuing or surviving corporation or ownership and disposition of Equity Interests in ACS Media LLC, (ii) the exercise by ACS Media Holdings of its right, if it decides in its sole discretion to do so, to exchange Equity Interests in ACS Media LLC for trust units of ACS Media Income Fund pursuant to clause (h) of the Person formed definition of the term ACS Media Transaction and the subsequent ownership and disposition of such units, (iii) the issuance of and payment with respect to the ACS Media Holdings Notes and the issuance of Equity Interests in ACS Media Holdings to ACS InfoSource, Inc., in each case as described in clause (a) of the definition of the term "ACS Media Transaction", and the distribution by ACS Media Holdings to ACS InfoSource, Inc., of assets with respect to Equity Interests in ACS Media Holdings held by ACS InfoSource, Inc., (iv) the receipt of the ACS Media Business and the contribution of the ACS Media Business to ACS Media LLC, in each case as described in clauses (a) and (b) of the definition of the term "ACS Media Transaction", (v) the entry into the ACS Media Transaction Related Agreements and (vi) activities incidental to the foregoing. ACS Media Holdings will not own or surviving acquire any assets (other than the ACS Media Business, as described in clause (a) of the definition of the term "ACS Media Transaction", Equity Interests in ACS Media LLC, any distributions with respect to Equity Interests in ACS Media LLC or the units referred to in the immediately preceding sentence, such merger units and cash or consolidation is not other consideration obtained pursuant to clause (e) or (f) of the Parent Borrower definition of the term "ACS Media Transaction" and any ACS Media Disposition) or incur any liabilities (any such Personother than liabilities under the Loan Documents, the “Successor Parent Borrower”liabilities imposed by law, including tax liabilities, and other liabilities incidental to its existence and permitted business and activities), PROVIDED that ACS Media Holdings shall promptly distribute to the Borrower or any Subsidiary Loan Party any assets obtained pursuant to clauses (Ae) the Successor Parent Borrower shall be an entity organized or existing under the laws and (f) of the United Statesdefinition of the term "ACS Media Transaction", any state thereof, the District ACS Media Disposition and any distribution with respect to Equity Interests in ACS Media LLC or trust units of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;ACS Media Income Fund.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall not be an obligor in respect of any other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for (acting at the avoidance of doubt, the Equity Interests Direction of the Parent Borrower shall be pledged as CollateralRequired Lenders);
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iiiv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders, provided, in the case of clauses (ii) through (iv), that (A) no Event of Default shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Loan Party, as the case may beParty in accordance with Sections 7.02 (other than Section 7.02(e));
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws Laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereofColumbia, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, Holdings may merge or consolidate with any other Person; provided that (A) Holdings shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”)
(A) the Successor Holdings shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia, (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(f) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02 (other than Section 7.02(e)); provided that 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;
(g) [reserved]; and
(h) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 1 contract
Sources: Credit Agreement (JOANN Inc.)
Fundamental Changes. MergeThe Parent and the Borrower will not, dissolve, liquidate, and will not permit any Subsidiary to:
(a) merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its the assets of the Borrower or all or substantially all of the stock of the Borrower’s Subsidiaries taken as whole (in each case, whether now owned or hereafter acquired) to ), or liquidate or dissolve (including, in favor each case of any Personof the foregoing, pursuant to a Series LLC Division), except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries if at the time of such merger or consolidation other than the Parent Borrower and, thereof and immediately after giving effect to such merger or consolidation, the direct parent of the Parent Borrower thereto no Default shall expressly assume all the obligations of Holdings under this Agreement have occurred and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
continuing (i) any Restricted Subsidiary that is not a Loan Party Person may merge into, or consolidate with with, Borrower or into any other Restricted Subsidiary of the Parent in a transaction in which Borrower that or the Parent is not a Loan Party and the surviving entity; (ii) any Restricted Person not a Credit Party may merge into, or consolidate with, any Subsidiary in a transaction in which the surviving entity (or each surviving entity with respect to a Series LLC Division) is a Subsidiary, (iii) any Subsidiary not a Credit Party may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (iv) any Subsidiary not a Credit Party may (A) liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;, or (B) merge with a third party, (v) any Subsidiary which is a Credit Party may merge into (or consolidate with) or liquidate or dissolve into, any other Subsidiary which is a Credit Party, and (vi) any Subsidiary which is a Credit Party may sell, transfer, lease or otherwise dispose of its assets to Borrower or to any other Subsidiary which is a Credit Party.
(b) sell, transfer, lease or otherwise dispose of any of its assets to a Person other than pursuant to clause (a) above if the Value of the assets disposed of in any twelve (12) month period exceeds twenty-five percent (25%) of Total Asset Value of the Borrower, unless not less than ten (10) Business Days prior to any such disposition Borrower delivers to Administrative Agent a Compliance Certificate and Borrowing Base Certificate evidencing compliance with all terms and conditions set forth therein.
(c) enter into any Restricted Subsidiary may Dispose of all or substantially all of its assets merger (upon voluntary liquidation or otherwiseother than the 2019 Merger) to the Parent in which Borrower or another Restricted Subsidiary; Guarantor will not be the surviving entity or which would result in a Change in Control, and provided in each instance that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, Lenders have received all “know your customer” and other information as the case Lenders may be;reasonably request with respect to such merger.
(d) engage to any material extent in any business other than the ownership, development, operation and management of office, industrial, industrial and commercial storage, manufacturing, warehouse, distribution or educational properties (ior mixed uses thereof) so long and businesses reasonably related or ancillary thereto without the prior written consent of the Lenders. For the avoidance of doubt, any Subsidiary, including any Subsidiary Guarantor, may change or convert its status as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10limited liability company, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving limited partnership, corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Personother registered business organization form to become a limited liability company, the “Successor Parent Borrower”)limited partnership, (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (corporation or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;registered business organization form.
Appears in 1 contract
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary to, liquidatedirectly or indirectly, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries if at the time of such merger or consolidation other than the Parent Borrower and, thereof and immediately after giving effect to such merger thereto no Default or consolidation, the direct parent Event of the Parent Borrower Default shall expressly assume all the obligations of Holdings under this Agreement have occurred and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
continuing (i) any Restricted wholly owned Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that in a transaction in which the Borrower is not a Loan Party the surviving corporation, and (ii) any Restricted wholly owned Subsidiary may liquidate merge with or dissolve into any wholly owned Subsidiary in a transaction in which the surviving entity is a Subsidiary and (if any party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party; provided that in connection with the foregoing, the appropriate Loan Parties shall take all actions necessary or change its legal form if reasonably requested by the Parent Borrower determines Collateral Agent to maintain the perfection or perfect, as the case may be, protect and preserve the Liens on the Collateral granted to the Collateral Agent pursuant to the Security Documents and otherwise comply with the provisions of Sections 5.11 and 5.12, in good faith that such action is in each case, on the best interests terms set forth therein and to the extent applicable.
(b) Notwithstanding the foregoing, any Subsidiary of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) may dispose of any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; any Subsidiary Loan Party (provided that if in connection with the transferor in such a transaction is a U.S. foregoing, the appropriate Loan Party Parties shall take all actions necessary or a Foreign Loan Party, then reasonably requested by the transferee must be a U.S. Loan Party Collateral Agent to maintain the perfection or Foreign Loan Partyperfect, as the case may be;, protect and preserve the Liens on the Collateral granted to the Collateral Agent pursuant to the Security Documents and otherwise comply with the provisions of Sections 5.11 and 5.12, in each case, on the terms set forth therein and to the extent applicable), and any Subsidiary which is not a Subsidiary Loan Party may dispose of assets to any other Subsidiary which is not a Subsidiary Loan Party.
(dc) (i) so long as no Default exists The Borrower will not, and will not permit any of its Subsidiaries to, directly or would result therefrom and the Parent Borrower shall be indirectly, engage in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any business other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws than businesses of the United States, any state thereof, type conducted by the District of Columbia or any territory thereof, (B) Borrower and its Subsidiaries on the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement Second Lien Effective Date and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;related thereto.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall not be an obligor in respect of Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders, provided, in the case of clauses (ii) through (iv), that (A) no Event of Default shall result therefrom, (B) [reserved] and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation liquidation, dissolution or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) such Investment must be a permitted Investment in a Subsidiary which is not a Loan Party, as the case may beParty in accordance with Sections 7.02 (other than Section 7.02(e));
(d) (i) so long as no Default exists or would result therefrom and therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the Parent Borrower shall be purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)); and
(e) any Foreign Subsidiary may merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in compliance with Section 7.14 for the Test Period then last ended calculated on one transaction or in a pro forma basis for such merger series of transactions) all or consolidation substantially all of its assets (whether now owned or hereafter acquired) in accordance with any proceeding under any applicable Debtor Relief Law. In connection with any merger, dissolution, liquidation, consolidation or disposition permitted pursuant to this Section 1.107.04, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower applicable Loan Party shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory deliver to the Administrative Agent, (C) each Guarantor, unless it is the other party to if such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to Party requests the Administrative Agent to execute and deliver any agreements or releases in connection with such merger, dissolution, liquidation, consolidation or disposition, an officer’s certificate and an opinion executed by a Responsible Officer of counsel, each stating such Loan Party certifying that such merger merger, dissolution, liquidation, consolidation or consolidation and such supplement to disposition is not prohibited by this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;Section 7.04.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, except that, so long as no Default exists or Dispose of would result therefrom, (whether in one transaction i) any Person may merge with or into, consolidate with or amalgamate with the Borrower in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or transaction in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with which the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (yii) such merger any Person (other than Parent Guarantor) may merge with or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United Statesinto, consolidate with or amalgamate with any state thereof or the District of Columbia and Subsidiary (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger Borrower) in a transaction in which the continuing or consolidation, the direct parent surviving Person shall be a Subsidiary of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent andBorrower, for the avoidance of doubt, the Equity Interests (iii) any Subsidiary of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge with or into, consolidate with or into amalgamate with any other Restricted Person in order to consummate an Investment permitted by Section 7.02 or a Disposition permitted by Section 7.05; (iv) any Subsidiary of the Borrower may merge into, the Parent Guarantor, the Borrower that is not a Loan Party or any other Subsidiary of the Borrower; and (iiv) any Restricted Subsidiary of the Borrower may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
. For the avoidance of doubt, in connection with an internal restructuring, (cx) any Restricted Subsidiary DOC OP may Dispose of merge, consolidate or amalgamate with or into, or distribute or transfer all or substantially all of its assets to, DOC or the Borrower and (upon voluntary liquidation y) DOC may merge, consolidate or otherwise) to the Parent Borrower amalgamate with or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party into, or a Foreign Loan Party, then the transferee must be a U.S. Loan Party distribute or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists transfer all or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10substantially all its assets to, the Parent Borrower may merge with any other Person; provided that (i) Borrower, it being understood and agreed that, in the Parent Borrower shall be event the continuing successor or surviving corporation or (ii) if the Person formed by or surviving transferee entity in any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall transaction expressly assume all assumes the obligations of the Parent Borrower DOC OP under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory any DOC Debt, such assumption shall be permitted notwithstanding anything to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, contrary in this Article VII and shall have by not constitute a supplement to the Guaranty confirmed that its Guarantee new incurrence of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this AgreementIndebtedness for purposes Section 7.03; provided, further, that if the foregoing are satisfiedprovided that, the Successor Parent Borrower will succeed to, and be substituted for, Loan Parties shall provide such customary “know your customer” documentation as the Parent Borrower under this Agreement;Lenders may reasonably require in connection with such transfer. 75
Appears in 1 contract
Fundamental Changes. MergeThe Company will not, dissolveand will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or amalgamation, or liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation or dissolution), or Dispose of (whether in one transaction convey, sell, lease, assign, transfer or in a series of transactions) otherwise dispose of, all or substantially all of its business units, assets (whether now owned or hereafter acquired) to or in favor of any Personother properties, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or Event of Default has occurred and is continuing or would result therefrom and therefrom, any Subsidiary of the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger Company or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other PersonPerson may be merged, amalgamated or consolidated with or into the Company or any Borrower; provided that (iA) the Parent Company or such Borrower shall be the continuing or surviving corporation entity or (iiB) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Parent Company or such Borrower (any such other Person, the “Successor Parent Borrower”), (A1) the Successor Parent Borrower shall shall, as the case may be, be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofthereof or in the case of a Borrower that is a Foreign Subsidiary, under the law of the jurisdiction where the relevant Borrower that is a Foreign Subsidiary was organized, (B2) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Company or such Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C3) 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 guaranty thereunder shall apply to the any Successor Parent Borrower’s obligations under this Agreement, (D4) each Loan PartySubsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to each Security Agreement confirmed any applicable Collateral Document, affirmed that all of its obligations thereunder shall still apply to and (5) the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any supplements preserve the enforceability of the Guaranty and the perfection and priority of the Liens under the applicable Collateral Document comply with this Agreement; provided, further, Documents (it being understood that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower Company or such Borrower, as applicable, under this Agreement);
(ii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of the Company (other than any Subsidiary that is a Borrower) or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Company (other than any Subsidiary that is a Borrower), provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Company shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall, execute a supplement to the Guaranty and the relevant Collateral Documents in form and substance reasonably satisfactory to the Agent in order to become a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder for the benefit of the Secured Parties, (iii) no Default or Event of Default has occurred and is continuing or would result from the consummation of such merger, amalgamation or consolidation and (iv) the Company shall have delivered to the Agent an officers’ certificate stating that such merger, amalgamation or consolidation and any such supplements to any Collateral Document preserve the enforceability of the Guaranties and the perfection and priority of the Liens under the applicable Collateral Documents;
(iii) any Restricted Subsidiary that is not a Loan Party may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Company or any other Restricted Subsidiary;
(iv) any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any Loan Party, provided that the consideration for any such disposition by any Person other than a Guarantor shall not exceed the fair value of such assets;
(v) any Restricted Subsidiary may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in the best interests of the Company and is not materially disadvantageous to the Lenders;
(vi) to the extent that no Default or Event of Default would result from the consummation of such disposition or investment, the Company and the Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation, investment or disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 5.02(e) or an Investment permitted pursuant to Section 5.02(d);
(vii) the Company and the Restricted Subsidiaries may consummate a Disposition constituting the sale of manufacturing facilities and related assets, in connection with establishing outsourcing arrangements providing substantially similar functionality; and
(viii) any other transaction set forth on Schedule 5.02(e) may be consummated; provided, however, except as permitted by Section 5.02(e)(v), Section 5.02(e)(xiv) or Section 5.02(f)(vii), neither the Company nor any Domestic Subsidiary will convey, sell, lease, assign, transfer or otherwise dispose of (collectively, a “transfer”) any of its property, business or assets (including, without limitation leasehold interests), whether now owned or hereafter acquired, to any Foreign Subsidiary, except to the extent that such transfer or series of related transfers (A) individually or in the aggregate, would not reasonably be expected to materially and adversely affect the business, results of operations or financial condition of the Company and its Subsidiaries taken as a whole, (B) are made for cash consideration payable in immediately available funds (provided that this clause (B) shall not apply to any transfer of Equity Interest for which reasonable equivalent non-cash value is given), and (C) are made for consideration equal to the value of the asset or assets that would be attributed to such asset or assets being transferred by an independent and unaffiliated third party purchasing such assets in an arms-length sale transaction as of such date, as determined in good faith by the Company.
Appears in 1 contract
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve (including, in each case, pursuant to a Delaware LLC Division) or dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transactions), except that:
(a1) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, merger the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and Columbia, and
(zc) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, ,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, Borrower,
(iii) no Event of Default exists at such time or after giving effect to such merger or consolidationtransaction, the and
(iv) after giving effect to such transaction, a direct parent of the Parent Borrower shall will (I) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for and the avoidance Borrower and (II) pledge 100% of doubt, the Equity Interests of the Parent Borrower shall be pledged held by such direct parent to the Administrative Agent as CollateralCollateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and the Borrower;
(ia) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party;
(b) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party; provided that a Loan Party and shall be the continuing or surviving Person;
(iic) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party or Restricted Subsidiary in another jurisdiction in the United States will be permitted; and
(d) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided that in the case of clause (d), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05;
(c3) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in any such a transaction is a U.S. disposition (upon voluntary liquidation or otherwise) by any Loan Party or to any Restricted Subsidiary that is not a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may beshall otherwise be permitted under Section 7.05;
(d) (i4) so long as no Event of Default exists has occurred and is continuing or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) the Parent Borrower shall be the continuing or surviving corporation Person or (iib) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the a “Successor Parent Borrower”), ):
(Ai) the Successor Parent Borrower shall will:
(I) be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof, Columbia,
(BII) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, and
(III) deliver to the Administrative Agent (A) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (B) to the extent reasonably requested by the Administrative Agent, an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions;
(Cii) substantially contemporaneously with such transaction (or at a later date as agreed by the Administrative Agent),
(I) each Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Guaranty confirmed that (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guarantee Guaranty of the Obligations shall apply to (including the Successor Parent Borrower’s obligations under this Agreement, ),
(DII) each Loan Party, unless it is the other party to such merger or consolidation, shall have will, by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument in another form reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder;
(iii) confirmed that its obligations thereunder shall apply after giving pro forma effect to such incurrence, the Borrower would be permitted to incur at least $1.00 of additional Permitted Ratio Debt; and
(iv) to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to extent reasonably requested by the Administrative Agent an officer’s certificate or the Priority Revolving Agent, the Administrative Agent or the Priority Revolving Agent, as applicable, shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and an opinion other information in respect of counselthe Successor Borrower (including, each stating that such merger or consolidation if the Successor Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect of the Successor Borrower) required under applicable “know your customer” and such supplement to this Agreement or any Collateral Document comply with this Agreementanti-money laundering rules and regulations, including the USA PATRIOT Act; provided, further, provided further that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this AgreementAgreement and in the case of the disposition of all or substantially all assets, the original Borrower will be released;
(5) so long as no Event of Default has occurred and is continuing or would result therefrom, Holdings may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) Holdings will be the continuing or surviving Person or (b) if:
(i) the Person formed by or surviving any such merger or consolidation is not Holdings,
(ii) Holdings is not the Person into which the applicable Person has been liquidated, or
(iii) in connection with a disposition of all or substantially all of Holding’s assets, the Person that is the transferee of such assets is not Holdings (any such Person described in the preceding clauses (i) through (iii), a “Successor Holdings”), then the Successor Holdings will:
(I) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(II) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower,
(III) pledge 100% of the Equity Interests of the Borrower held by such Successor Holdings to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrower,
(IV) if requested by the Administrative Agent, deliver, or cause the Borrower to deliver, to the Administrative Agent (A) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this Agreement and (B) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; and
(iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided further that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement and in the case of the disposition of all or substantially all assets, the original Holdings will be released;
(6) any Restricted Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other Investment permitted pursuant to Section 7.05;
(7) a merger, dissolution, liquidation, consolidation or disposition, the purpose of which is to effect a disposition permitted pursuant to Section 7.04 or a disposition that does not constitute any Asset Sale (other than a transaction described in clause (b) of the definition of Asset Sale) shall be permitted;
(8) the Borrower, Holdings and any Restricted Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name;
(9) the Loan Parties and the Restricted Subsidiaries may consummate the Transactions and the Healthsmart Transactions; and
(10) (i) the formation, dissolution, liquidation or disposition of any Subsidiary that is a Divided LLC and (ii) any disposition to effect the formation of any Subsidiary that is a Divided LLC which disposition is not otherwise prohibited hereunder shall be permitted; provided that in each case upon formation of a Divided LLC, the Borrower complies with Section 6.11 with respect to such Divided LLC to the extent applicable.
Appears in 1 contract
Sources: First Lien Credit Agreement (Convey Health Solutions Holdings, Inc.)
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any of its Subsidiaries to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (whether in one a single transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its assets Subsidiaries on a consolidated basis (in each case, whether now owned or hereafter acquired) to or liquidate or dissolve; provided that, in favor the case of any Personthe following clauses (i) and (v), except that:
if, at the time thereof and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (ai) Holdings the Borrower or any Restricted Subsidiary may merge or consolidate with a Person if the Parent Borrower (including or such Subsidiary if the Borrower is not a mergerparty to such merger and if any party to such merger is a Subsidiary Loan Party, a Subsidiary Loan Party shall be the purpose of surviving Person (unless the Borrower is a party thereto, in which is to reorganize case the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person)) is the surviving Person, (yii) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United Statesany Subsidiary may merge into another Subsidiary, provided that if any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect party to such merger or consolidationis a Subsidiary Loan Party, the direct parent Subsidiary Loan Party shall be the surviving Person, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to a Subsidiary Loan Party, (iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Parent Borrower shall expressly assume all and is not materially disadvantageous to the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings Lenders; provided that if such Subsidiary is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory Subsidiary Loan Party, the assets of such Subsidiary shall be distributed to the Administrative Agent andBorrower or a Subsidiary Loan Party, for (v) subject to clause (ii), any Subsidiary may merge, dissolve or consolidate in connection with the avoidance consummation of doubtany Permitted Acquisition or a disposition permitted by Section 7.6, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
and (ivi) any Restricted Subsidiary that is not a Loan Party may merge sell, transfer, lease or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose otherwise dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if any Subsidiary of the transferor Borrower (or, in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and of a JV Entity, to the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for owners of such merger or consolidation JV Entity in accordance with Section 1.10the JV Documents).
(b) The Borrower will 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 its Subsidiaries on the date US-DOCS\151470090.12 hereof and businesses ancillary or reasonably related to, or extensions of, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws business of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;Subsidiaries.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
, so long as no Default exists or would result therefrom: (a) Holdings or any Restricted Subsidiary may merge merge, consolidate or consolidate amalgamate with the Parent Borrower any other Person (including a provided, that, if such merger, consolidation or amalgamation involves the purpose of which Borrower, the Borrower is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person); (b) the Borrower may merge, consolidate or amalgamate with any other Person, so long as (yi) such merger the Borrower is the continuing or consolidation does not result in surviving Person or (ii) the Parent Borrower ceasing to be incorporated surviving Person is organized under the Laws laws of the United States, any state thereof or the District of Columbia and (z) assumes in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent writing all of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party Borrower’s Obligations pursuant to a supplement hereto or thereto in form documentation reasonably satisfactory to the Administrative Agent and provides to the Administrative Agent and the Lenders all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in extent such surviving Person qualifies as a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an legal entity organized or existing customer” under the laws of the United StatesBeneficial Ownership Regulation, any state thereofa Beneficial Ownership Certification, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form with results reasonably satisfactory to the Administrative Agent, (C) Agent and each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to Lenders (and upon any consolidation by the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is Borrower with or merger by the Borrower into any other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfiedPerson, the Successor Parent successor Person formed by such consolidation or into which the Borrower will is merged shall succeed to, and be substituted for, and may exercise every right and power of, the Parent Borrower under this Agreement;Agreement with the same effect as if such successor Person had been named the Borrower herein) and immediately after giving effect to such merger, consolidation or amalgamation no Default shall have occurred and be continuing; (c) the Borrower or any Subsidiary may, (i) in one transaction or a series of transactions, Dispose of its assets, or (ii) in the case of any Subsidiary, liquidate or dissolve, so long as, in the case of any such Disposition, liquidation or dissolution pursuant to clause (c)(i) or clause (c)(ii) above, such Disposition (whether in one transaction or in a series of transactions), such liquidation or such dissolution does not constitute or otherwise result in the Disposition of all or substantially all of the assets of the Borrower or the Borrower and its Subsidiaries, taken as a whole; and (d) any Subsidiary (other than any Material Subsidiary) may be liquidated or dissolved 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.
Appears in 1 contract
Sources: Credit Agreement (Adobe Inc.)
Fundamental Changes. MergeThe Company will not, dissolveand will not permit any of the Restricted Subsidiaries to, enter into any merger, consolidation or amalgamation, or liquidate, consolidate with wind up or into another Persondissolve itself (or suffer any liquidation or dissolution), or Dispose of (whether in one transaction convey, sell, lease, assign, transfer or in a series of transactions) otherwise dispose of, all or substantially all of its business units, assets (whether now owned or hereafter acquired) to or in favor of any Personother properties, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or Event of Default has occurred and is continuing or would result therefrom and therefrom, any Subsidiary of the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger Company or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other PersonPerson may be merged, amalgamated or consolidated with or into the Company or any Borrower; provided that (iA) the Parent Company or such Borrower shall be the continuing or surviving corporation entity or (iiB) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Parent Company or such Borrower (any such other Person, the “Successor Parent Borrower”), (A1) the Successor Parent Borrower shall shall, as the case may be, be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any AMERICAS/2024254939.6 139 Sealed Air – 4th A&R Syndicated Facility Agt territory thereofthereof or in the case of a Borrower that is a Foreign Subsidiary, under the law of the jurisdiction where the relevant Borrower that is a Foreign Subsidiary was organized, (B2) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Company or such Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C3) 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 guaranty thereunder shall apply to the any Successor Parent Borrower’s obligations under this Agreement, (D4) each Loan PartySubsidiary grantor and each Subsidiary pledgor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to each Security Agreement confirmed any applicable Collateral Document, affirmed that all of its obligations thereunder shall still apply to and (5) the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any supplements preserve the enforceability of the Guaranty and the perfection and priority of the Liens under the applicable Collateral Document comply with this Agreement; provided, further, Documents (it being understood that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower Company or such Borrower, as applicable, under this Agreement);
(ii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, any Subsidiary of the Company (other than any Subsidiary that is a Borrower) or any other Person may be merged, amalgamated or consolidated with or into any one or more Subsidiaries of the Company (other than any Subsidiary that is a Borrower), provided that (i) in the case of any merger, amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted Subsidiary shall be the continuing or surviving Person or (B) the Company shall take all steps necessary to cause the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or more Guarantors, a Guarantor shall be the continuing or surviving Person or the Person formed by or surviving any such merger, amalgamation or consolidation (if other than a Guarantor) shall, execute a supplement to the Guaranty and the relevant Collateral Documents in form and substance reasonably satisfactory to the Agent in order to become a Guarantor and pledgor, mortgagor and grantor, as applicable, thereunder for the benefit of the Secured Parties, (iii) no Default or Event of Default has occurred and is continuing or would result from the consummation of such merger, amalgamation or consolidation and (iv) the Company shall have delivered to the Agent an officers’ certificate stating that such merger, amalgamation or consolidation and any such supplements to any Collateral Document preserve the enforceability of the Guaranties and the perfection and priority of the Liens under the applicable Collateral Documents;
(iii) any Restricted Subsidiary that is not a Loan Party may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Company or any other Restricted Subsidiary; AMERICAS/2024254939.6 140 Sealed Air – 4th A&R Syndicated Facility Agt (iv) any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any Loan Party, provided that the consideration for any such disposition by any Person other than a Guarantor shall not exceed the fair value of such assets;
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, (a) No Consolidated Entity will merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries if at the time of such merger or consolidation other than the Parent Borrower and, thereof and immediately after giving effect to such merger or consolidation, the direct parent of the Parent Borrower thereto no Default shall expressly assume all the obligations of Holdings under this Agreement have occurred and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
continuing (i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that in a transaction in which the Parent Borrower is not a Loan Party and the surviving corporation, (ii) any Restricted Subsidiary may merge into any Wholly-Owned Subsidiary in a transaction in which the surviving entity is a Wholly-Owned Subsidiary and, if any party to such merger is a Loan Party, is or becomes a Loan Party, (iii) any Subsidiary (other than a Loan Party) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if Borrower, is not materially disadvantageous to the Lenders;
Lenders and could not reasonably be expected to have a Material Adverse Effect, (civ) any Restricted Foreign Subsidiary may Dispose merge into any other Foreign Subsidiary that is a Wholly-Owned Subsidiary in a transaction in which a Foreign Subsidiary that is a Wholly-Owned Subsidiary is the surviving corporation, (v) ▇▇▇▇▇▇▇ River Australia, ▇▇▇▇▇▇▇ River Mexico and ▇▇▇▇▇▇▇ River Proteomics may be sold, liquidated or dissolved and may take any action described in clauses (h) or (i) of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Article VII so long as the Parent Borrower receives its ratable portion of the net proceeds available to the equity holders in connection with such liquidation or another Restricted Subsidiary; provided that if the transferor dissolution, (vi) any Wholly-Owned Subsidiary may merge into any Person in such order to consummate a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (iPermitted Acquisition permitted by Section 6.04(e) so long as no Default exists or would result therefrom and after giving effect thereto the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for Person surviving such merger or consolidation is a Subsidiary and (vii) any Consolidated Entity may effect the closure of a division in accordance with Section 1.10, the Parent Borrower may merge with such Consolidated Entity.
(b) No Consolidated Entity will engage to any material extent in any business other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws than businesses of the United States, any state thereof, type conducted by the District Consolidated Entities on the date of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations execution of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;related thereto.
Appears in 1 contract
Sources: Credit Agreement (Charles River Laboratories International Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, or Dispose of (whether in one transaction or in effect a series of 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 Any Restricted Subsidiary may merge merge, amalgamate or consolidate with the Parent Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that:
(xi) the Parent Borrower shall be the continuing or surviving Person, ; and
(yii) such merger merger, amalgamation or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower Columbia; and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(ib) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary or liquidate or dissolve;
(c) any merger or amalgamation the purpose of the Parent Borrower that which is not to reincorporate or reorganize a Loan Party and Restricted Subsidiary in another jurisdiction shall be permitted;
(iid) 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 Parent Borrower determines in good faith that surviving Person (or the Person who receives the assets of such action is in the best interests of the Parent Borrower and its dissolving or liquidated Restricted Subsidiaries and if not materially disadvantageous to the LendersSubsidiary) shall be a Restricted Subsidiary;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (ie) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge merge, amalgamate or consolidate with any other Person; provided that that:
(i) the Parent 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 Parent Borrower (any such Person, the “Successor Parent Borrower”), ;
(Aa) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof, Columbia;
(Bb) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, ;
(Cc) 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 Parent Borrower’s obligations under this Agreement, ;
(Dd) each Loan Party, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and the direct parent of such Person shall pledge 100.00% of the Equity Interests of such Person to the Administrative Agent as Collateral to secure the Obligations; and
(Fe) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement, and, with respect to such opinion of counsel only, including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; provided, further, it being agreed that if the foregoing are satisfied, the Successor Parent Borrower ▇▇▇▇▇▇▇▇ will succeed to, and be substituted for, the Parent 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) [reserved]; and
(iii) if a Division is conducted by a Loan Party other than the Borrower, then each surviving or resulting Person of such Division shall also be a Loan Party unless and to the extent any such surviving or resulting Loan Party is the subject of a Disposition permitted pursuant to Section 7.05 (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; and
(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)). Notwithstanding anything herein to the contrary, in the event of any merger, dissolution, liquidation, consolidation, amalgamation or Division of any Loan Party or a Restricted Subsidiary effected in accordance with this Section 7.04, the Borrower shall or shall cause, with respect to each surviving or continuing Restricted Subsidiary (a) promptly deliver or cause to be delivered to the Administrative Agent for further distribution by the Administrative Agent to each Lender (i) such information and documentation reasonably requested by the Administrative Agent or any Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (ii) a Beneficial Ownership Certification and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent or Collateral Agent may reasonably request in order to perfect or continue the perfection of the Liens granted or purported to be granted by the Collateral Documents in accordance with Section 6.11 and as promptly as practicable
Appears in 1 contract
Sources: Abl Revolving Credit Agreement (Petco Health & Wellness Company, Inc.)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any PersonPerson (other than as part of the Transaction), except that:
(a) Holdings or any Restricted Subsidiary may merge merge, amalgamate or consolidate with the Parent Borrower (including a mergermerger or amalgamation, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger merger, amalgamation or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger merger, amalgamation or consolidation of Holdings with and into the Parent Borrower, Holdings shall not be an obligor in respect of any Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Parent Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger merger, amalgamation or consolidation other than the Parent Borrower and, after giving effect to such merger merger, amalgamation or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Non-Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is a Non-Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iiiv) any Restricted Subsidiary (other than the Parent Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) and (iii), (A) no Event of Default shall result therefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Loan Party) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign Loan Party(ii) to the extent constituting an Investment, as the case may besuch Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii)) or a Permitted Investment;
(d) (i) so long as no Default exists has occurred and is continuing or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge merge, dissolve, liquidate, amalgamate or consolidate with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Parent Borrower or is a Person into which the Borrower has been liquidated or dissolved (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger merger, dissolution, liquidation, amalgamation or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger merger, dissolution, liquidation, amalgamation or consolidation, shall have by a supplement to each the applicable Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger merger, amalgamation or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default has occurred and is continuing or would result therefrom, Holdings may merge, dissolve, liquidate, amalgamate or consolidate with any other Person; provided that (i) Holdings shall be the continuing or surviving Person or (ii) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or is a Person into which Holdings has been liquidated or dissolved (any such Person, the “Successor Holdings”), (A) the Successor Holdings shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (C) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement;
(f) so long as no Default has occurred and is continuing or would result therefrom (solely in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(b)(xviii)) or a Permitted Investment; provided that the continuing or surviving Person shall be a subsidiary, which together with each Restricted Subsidiary, shall have complied with the applicable requirements of Section 6.11;
(g) the Transaction (including the Reorganization and the issuance of the Hook Stock) may be consummated; and
(h) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)).
Appears in 1 contract
Fundamental Changes. Merge(a) The Borrower may not consolidate, dissolve, liquidate, consolidate merge or amalgamate with or into another Person, or Dispose of wind up into (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Personnot the Borrower is the surviving corporation), except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto Borrower may not sell, assign, transfer, lease, convey or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose otherwise dispose of all or substantially all of the properties or assets of the Borrower and its assets (upon voluntary liquidation Restricted Subsidiaries, taken as a whole, in one or otherwise) more related transactions, to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;any Person unless:
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be is the continuing or surviving corporation or (ii) if the Person formed by or surviving any such consolidation, merger or consolidation amalgamation (if other than the Borrower) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereofthereof (such Person, the “Successor Company”);
(Bii) the Successor Parent Borrower shall Company, if other than the Borrower, expressly assume assumes all the obligations Obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form documentation reasonably satisfactory to the Administrative Agent, ; and
(Ciii) each Subsidiary Guarantor, unless it is the other party to such merger or consolidationthe transactions described above, in which case clause (i)(B) of Section 6.04(c) shall apply, shall have by a supplement to the Guaranty confirmed that its Guarantee of Obligations under the Obligations shall apply applicable Loan Documents to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless which it is the other a party pursuant to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument documentation reasonably satisfactory to the Administrative Agent; The Successor Company will succeed to, and be substituted for the Borrower under the Loan Documents.
(b) confirmed that its obligations thereunder shall apply Subject to the Successor Parent Borrower’s obligations under this Agreement other provisions of Section 6.04(a),
(i) a Restricted Subsidiary may consolidate or amalgamate with or merge into or transfer all or part of its properties and assets to (FA) the Parent Borrower shall or any other Restricted Subsidiary or (B) any other Person so long as the transaction does not violate Section 6.05; and
(ii) the Borrower may merge with an Affiliate of the Borrower solely for the purpose of reorganizing the Borrower in a different State of the United States, so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not increased thereby.
(c) No Subsidiary Guarantor will, and the Borrower will not permit any Subsidiary Guarantor to, consolidate, merge or amalgamate with or into or wind up into (whether or not the Borrower or a Subsidiary Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets, in one or more related transactions, to any Person unless:
(A) such Subsidiary Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation, merger or amalgamation (if other than such Subsidiary Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have delivered been made is organized or existing under the laws of the jurisdiction of organization of such Subsidiary Guarantor or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Subsidiary Guarantor or Person, the “Successor Subsidiary Person”); and
(B) the Successor Subsidiary Person, if other than such Subsidiary Guarantor, expressly assumes all the Obligations of such Subsidiary Guarantor pursuant to documentation reasonably satisfactory to the Administrative Agent an officer’s certificate and an opinion Agent; or
(ii) the transaction does not violate Section 6.05; In the case 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 satisfiedclause (i)(A) above, the Successor Parent Borrower Subsidiary Person will succeed to, and be substituted for, such Subsidiary Guarantor under the Parent applicable Loan Documents. Notwithstanding anything to the contrary in this Section 6.04, (i) any Subsidiary Guarantor may merge into, amalgamate with or transfer all or part of its properties and assets to another Restricted Subsidiary or the Borrower under and (ii) any Restricted Subsidiary may dissolve or liquidate its affairs if (x) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (y) any assets or business of such Restricted Subsidiary not otherwise disposed of or transferred in accordance with Section 6.05 or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a Loan Party or the relevant transfer is treated as an Investment subject to Section 6.03 after giving effect to such liquidation or dissolution. Notwithstanding anything to the contrary in this Agreement;Section 6.04, any Subsidiary Guarantor may merge into, amalgamate with or transfer all or part of its properties and assets to another Subsidiary Guarantor or the Borrower without the necessity of complying with any requirement to provide notice as otherwise required by Section 6.04(a) or (c) or any requirement to provide the documentation described in Section 6.04(a)(iii). Notwithstanding anything to the contrary in this Section 6.04, the Borrower and its Restricted Subsidiaries may consummate the Transactions, including the Effective Date Mergers.
Appears in 1 contract
Fundamental Changes. MergeAmalgamate with, dissolve, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to amalgamate with, merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) to ), or in favor of any Personliquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing (ai) Holdings or any Restricted Subsidiary of the Borrower may amalgamate, merge or consolidate with or into the Parent Borrower (including a merger, or any other Subsidiary of the purpose of which is to reorganize the Parent Borrower into a new jurisdiction)Borrower; provided that (xA) if the Parent Borrower is a party to such amalgamation, merger or consolidation, the Borrower shall be the continuing or surviving Personentity, (yB) if any Subsidiary Guarantor is a party to such amalgamation, merger or consolidation does not result in (other than with the Parent Borrower ceasing to Borrower), a Subsidiary Guarantor shall be incorporated under the Laws continuing or surviving entity or the continuing, surviving, successor or transferee entity shall become a Subsidiary Guarantor, and (C) none of Cantrex Group, Inc, Sears Floor Covering Centres Inc./Centres de Reouvrement de ▇▇▇ ▇▇▇▇▇ Inc, or S.L.H. Transport, Inc. may amalgamate, merge or consolidate with or into a Loan Party, (iii) any Subsidiary of the United StatesBorrower may sell, transfer, lease or otherwise dispose of its assets to any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent Subsidiary of the Parent Borrower (provided that no Loan Party, shall expressly assume all the obligations sell, transfer, lease or otherwise dispose of Holdings under this Agreement and the other Loan Documents its assets to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into Party), (iv) any other Restricted Subsidiary of the Parent Borrower other than the Loan Parties may sell, transfer, lease or otherwise dispose of its assets to a Person that is not a Loan Party Subsidiary through transactions which are undertaken in the ordinary course of its business or determined by the Borrower in good faith to be in the best interests of the Borrower and its Subsidiaries, (iiv) any Restricted Subsidiary of the Borrower other than the Loan Parties may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
, (cvi) any Restricted Subsidiary of the Borrower may Dispose do any of all the foregoing as a result of or substantially all of its assets in order to effectuate a Permitted Disposition hereunder, and (upon voluntary liquidation or otherwisevii) to the Parent Borrower or another Restricted Subsidiary; any Subsidiary of the Borrower may amalgamate, merge or consolidate with or into a Person that is not a Subsidiary of the Borrower in connection with an Acquisition permitted by Section 5.02(c) or to effect any Permitted Disposition under clause (g) thereof, provided that that (A) if the transferor in such a transaction Borrower is a U.S. Loan Party or a Foreign Loan Partyparty to such amalgamation, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10consolidation, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or entity, and (iiB) if the Person formed by or surviving any Subsidiary Guarantor is a party to such amalgamation, merger or consolidation is not (other than with the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower a Subsidiary Guarantor shall be an the continuing or surviving entity organized or existing under the laws of the United Statescontinuing, any state thereofsurviving, the District of Columbia successor or any territory thereof, (B) the Successor Parent Borrower transferee entity shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is become a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Subsidiary Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;.
Appears in 1 contract
Sources: Credit Agreement (Sears Canada Inc.)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or dispose of (whether in one transaction or in a series of 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) Subject to clause (g) of Section 4.1 of the Security Agreement, Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and and
(zc) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, ,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, Borrower,
(iii) no Default or Event of Default exists at such time or after giving effect to such merger or consolidationtransaction and
(iv) after giving effect to such transaction, the direct parent of the Parent Borrower shall will (A) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for and the avoidance Borrower and (B) pledge 100% of doubt, the Equity Interests Interest of the Parent Borrower shall be pledged to the Administrative Agent as CollateralCollateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and the Borrower;
(ia) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party,
(b) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party; provided that a Loan Party and shall be the continuing or surviving Person;
(iic) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States will be permitted and
(d) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided that in the case of clauses (b) through (d), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or the definition of “Permitted Investments”;
(c3) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (x) the transferee must be a U.S. Loan Party or Foreign (y) to the extent constituting an Investment, such Investment must be a Permitted Investment in a Restricted Subsidiary which is not a Loan Party, as the case may beParty in connection with any Investment permitted hereunder;
(d) (i4) so long as no Default exists has occurred and is continuing or would result therefrom and the Parent Borrower shall be in compliance with (subject to Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.101.07(8)), the Parent Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) the Parent 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 Parent Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the a “Successor Parent Borrower”), ):
(i) the Successor Borrower will:
(A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof, Columbia,
(B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, Agent and the Borrower and
(C) deliver to the Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent;
(ii) substantially contemporaneously with such transaction (or at a later date as agreed by the Administrative Agent),
(A) each Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Guaranty confirmed that (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guarantee Guaranty of the Obligations shall apply to (including the Successor Parent Borrower’s obligations under this Agreement, ),
(DB) each Loan Party, unless it is the other party to such merger or consolidation, shall have will, by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply (or in another form reasonably satisfactory to the Successor Parent Borrower’s obligations under this AgreementAdministrative Agent), confirm its grant or pledge thereunder,
(EC) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have will, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed Collateral Agent and the Borrower), confirm that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement; and
(iii) after giving pro forma effect to such incurrence, the Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in clause (A) of Section 7.02(a); or
(iv) the Administrative Agent shall have received at least three (3) Business Days prior to the such transaction all documentation and other information in respect of the Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided further that if the foregoing are satisfied, the Successor ▇▇▇▇▇▇▇▇ will succeed to, and be substituted for, the Borrower under this Agreement;
(5) so long as no Default exists or would result therefrom (subject to Section 1.07(8)), Holdings may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) Holdings will be the continuing or surviving Person or (b) if:
(i) the Person formed by or surviving any such merger or consolidation is not Holdings,
(ii) Holdings is not the Person into which the applicable Person has been liquidated or
(iii) in connection with a disposition of all or substantially all of Holdings’ assets, the Person that is the transferee of such assets is not Holdings (any such Person described in the preceding clauses (i) through (iii), a “Successor Holdings”), then the Successor Holdings will:
(A) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(B) expressly assume all the obligations of Holdings under this Agreement and (F) the Parent Borrower shall have delivered other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower,
(C) (I) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower and (II) pledge 100% of the Equity Interests of the Borrower to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrower,
(D) if requested by the Administrative Agent, deliver, or cause the Borrower to deliver, to the Administrative Agent (I) an officerOfficer’s certificate and an opinion of counsel, each Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this AgreementAgreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; providedand
(iv) the Administrative Agent shall have received at least three (3) Business Days prior to the such transaction all documentation and other information in respect of the Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, further, including the USA PATRIOT Act; provided further that if the foregoing are satisfied, the Successor Parent Borrower Holdings will succeed to, and be substituted for, the Parent Borrower Holdings under this Agreement;
(6) any Restricted Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other investment permitted pursuant to Section 7.05;
(7) a merger, dissolution, liquidation, consolidation or disposition, the purpose of which is to effect a disposition not prohibited by Section 7.04 (other than under clause (2)(c) of the definition of “Asset Sale”);
(8) subject to clause (g) of Section 4.1 of the Security Agreement, the Borrower and any Restricted Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or such Restricted Subsidiary or the laws of a jurisdiction in the United States and (b) change its name; and
(9) the Loan Parties and the Restricted Subsidiaries may consummate the Transactions. Upon consummation of the Merger, Life Time will succeed to, and be substituted for, and may exercise every right and power of, ▇▇▇▇▇▇ Sub hereunder. Notwithstanding anything in this Agreement to the contrary, the merger of Merger Sub with and into Life Time on the Closing Date as described in the Transaction Agreement will be permitted hereunder, and no supplement or other deliverable will be required in connection therewith.
Appears in 1 contract
Fundamental Changes. MergeThe Borrower will not, dissolvenor will it permit any of the Subsidiary Guarantors to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, consolidate with or into another Personwind 79 Revolving Credit Agreement UP OR DISSOLVE OR DIVIDE ITSELF (OR SUFFER ANY LIQUIDATION, or Dispose DISSOLUTION OR DIVISION). THE BORROWER WILL NOT, NOR WILL IT PERMIT ANY OF THE SUBSIDIARY GUARANTORS TO, ACQUIRE ANY BUSINESS OR PROPERTY FROM, OR CAPITAL STOCK OF, OR BE A PARTY TO ANY ACQUISITION OF, ANY PERSON, EXCEPT FOR PURCHASES OR ACQUISITIONS OF PORTFOLIO INVESTMENTS AND OTHER ASSETS IN THE NORMAL COURSE OF THE DAY-TO-DAY BUSINESS ACTIVITIES OF THE BORROWER AND ITS SUBSIDIARIES AND NOT IN VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. THE BORROWER WILL NOT, NOR WILL IT PERMIT ANY OF THE SUBSIDIARY GUARANTORS TO, CONVEY, SELL, LEASE, TRANSFER OR OTHERWISE DISPOSE OF, IN ONE TRANSACTION OR A SERIES OF TRANSACTIONS, ANY PART OF ITS ASSETS, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, BUT EXCLUDING (X) ASSETS (OTHER THAN PORTFOLIO INVESTMENTS) SOLD OR DISPOSED OF IN THE ORDINARY COURSE OF BUSINESS (INCLUDING TO MAKE EXPENDITURES OF CASH IN THE NORMAL COURSE OF THE DAY-TO-DAY BUSINESS ACTIVITIES OF THE BORROWER AND ITS SUBSIDIARIES) AND (Y) SUBJECT TO THE PROVISIONS OF clauses (d) and (e) below, Portfolio Investments. Notwithstanding the foregoing provisions of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except thatthis Section:
(a) Holdings any Subsidiary Guarantor may be merged or consolidated with or into any Restricted other Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction)Guarantor; provided that (x) if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the Parent Borrower wholly owned Subsidiary Guarantor shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateralentity;
(ib) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary Guarantor of the Parent Borrower that is not may sell, lease, transfer (including a Loan Party and (iideemed transfer resulting from a division or plan of division) or otherwise dispose of any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if any wholly owned Subsidiary Guarantor of the transferor in such Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold, transferred (including a transaction is deemed transfer resulting from a U.S. Loan Party division or a Foreign Loan Party, then plan of division) or otherwise disposed of to the transferee must be a U.S. Loan Party Borrower or Foreign Loan Party, as any wholly owned Subsidiary Guarantor of the case may beBorrower;
(d) the Obligors may sell, transfer (iincluding a deemed transfer resulting from a division or plan of division) or otherwise dispose of Portfolio Investments (other than to a Financing Subsidiary) so long as no Default exists after giving effect to such sale, transfer or would result therefrom other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base;
(e) the Obligors may sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise dispose of Portfolio Investments to a Financing Subsidiary so long as (i) after giving effect to such sale, transfer or other disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans or Other Covered Indebtedness or any other Indebtedness that is included in the Covered Debt Amount at such time) the Covered Debt Amount does not exceed the Borrowing Base and the Parent Borrower shall be in compliance with Section 7.14 for delivers to the Test Period then last ended calculated on Administrative Agent a pro forma basis for certificate of a Financial Officer to such merger effect and (ii) either (x) the amount by which the Borrowing Base exceeds the Covered Debt Amount immediately prior to such release is not diminished as a result of such release or consolidation in accordance with Section 1.10, (y) the Parent Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount;
(f) the Borrower may merge with or consolidate with, or acquire all or substantially all of the assets of, any other Person; provided that Person (including any Subsidiary Guarantor) so long as (i) the Parent Borrower shall be is the continuing or surviving corporation or entity in such transaction and (ii) if at the Person formed by time thereof and after giving effect thereto, no Default shall have occurred or surviving be continuing; provided that, in no event shall the Borrower enter in any such transaction of merger or consolidation is not or amalgamation, or effect any internal reorganization, if the Parent Borrower (surviving entity would be organized under any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws jurisdiction other than a jurisdiction of the United States, any state thereof, the District of Columbia or any territory thereof, ; and
(Bg) the Successor Parent Borrower shall expressly assume all the obligations and each of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is Subsidiary Guarantors may sell, lease, transfer (including a party pursuant to deemed transfer resulting from a supplement hereto division or thereto in form reasonably satisfactory to the Administrative Agent, (Cplan of division) 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 otherwise dispose of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (equipment or other instrument reasonably satisfactory to property or assets that do not consist of Portfolio Investments so long as the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement aggregate amount of all such sales, leases, transfer and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or dispositions does not exceed $5,000,000 in any Collateral Document comply with this fiscal year. 80 Revolving Credit Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Owl Rock Capital Corp)
Fundamental Changes. Merge(a) No Loan Party will, dissolvenor will it permit any Subsidiary to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, sell, transfer, lease or 85 otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to ), or in favor of any Personliquidate 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 (ai) Holdings or any Restricted Subsidiary of the Borrower may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Subsidiary may merge into any Loan Party in a transaction in which the surviving entity is a Loan Party, (iii) any Person may merge or consolidate with the Parent Borrower (including or into any Loan Party or any of its Subsidiaries in connection with a mergerPermitted Acquisition or any Investment permitted under Section 6.04 so long as, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger involving any Loan Party, such Loan Party is the surviving entity (or consolidation the surviving entity becomes a Loan Party in accordance with this Agreement), (iv) any Subsidiary may sell, transfer, lease or otherwise dispose of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory its assets to the Administrative Agent andBorrower or to another Subsidiary, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(iv) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (iivi) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower reasonably determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower and its Restricted Subsidiaries Subsidiaries, and if 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) No Loan Party will, nor will it permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses which are, in the good faith judgment of the Borrower, similar, complementary or substantially related or ancillary thereto or are reasonable extensions thereof.
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent The Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;not change its fiscal year which currently ends on December 31 of each year.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, The Borrower will not merge into or consolidate with or into another any other Person, nor permit any other Person to merge into or Dispose consolidate with it, or sell, transfer (including pursuant to a Delaware LLC Division), lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its assets Subsidiaries taken as a whole (in each case, whether now owned or hereafter acquired) to or in favor of any Personliquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower;
(b) the Borrower and its Subsidiaries may sell, transfer (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto Delaware LLC Division), lease or thereto in form reasonably satisfactory to the Administrative Agent otherwise dispose of assets between or among one another; and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(ic) any Restricted Subsidiary that is not a Loan Party the Borrower may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate Person or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of transfer all or substantially all of its assets to any other Person so long as:
(upon voluntary liquidation i) the Borrower is the surviving corporation or otherwisethe surviving corporation (if the surviving corporation is not the Borrower) or the transferee of the Borrower’s assets in connection with a transfer of assets pursuant to this Section 6.03(c) shall assume all of the Loans and other obligations of the Borrower under this Agreement pursuant to an Assumption Agreement substantially in the form of Exhibit B; and
(ii) the credit rating for Index Debt of the surviving corporation or the transferee of the Borrower’s assets in connection with a transfer of assets pursuant to this Section 6.03(c) from either Moody’s or S&P immediately after such transaction is at least equal to the Parent credit rating for Index Debt of the Borrower or another Restricted Subsidiaryimmediately prior to the initial public announcement of such transaction; provided that in any event the requirements of this clause (ii) shall be deemed satisfied if the transferor in such a transaction is a U.S. Loan Party surviving corporation or a Foreign Loan Party, then the transferee must be of the Borrower’s assets in connection with a U.S. Loan Party or Foreign Loan Party, as the case may be;
(dtransfer of assets pursuant to this Section 6.03(c) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on has a pro forma basis for credit rating after such merger or consolidation of at least BBB, in accordance with Section 1.10the case of S&P, or Baa2, in the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws case of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;Moody’s.
Appears in 1 contract
Sources: Credit Agreement (NEWMONT Corp /DE/)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve (including, in each case, pursuant to a Delaware LLC Division) or dispose of (whether in one transaction or in a series of 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) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, merger the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and Columbia, and
(zc) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, ,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, Borrower,
(iii) no Event of Default exists at such time or after giving effect to such merger or consolidationtransaction, the and
(iv) after giving effect to such transaction, a direct parent of the Parent Borrower shall will (I) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for and the avoidance Borrower and (II) pledge 100% of doubt, the Equity Interests of the Parent Borrower shall be pledged held by such direct parent to the Administrative Agent as CollateralCollateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and the Borrower;
(ia) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party;
(b) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party; provided that a Loan Party and shall be the continuing or surviving Person;
(iic) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party or Restricted Subsidiary in another jurisdiction in the United States will be permitted; and
(d) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided that in the case of clause (d), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05;
(c3) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in any such a transaction is a U.S. disposition (upon voluntary liquidation or otherwise) by any Loan Party or to any Restricted Subsidiary that is not a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may beshall otherwise be permitted under Section 7.05;
(d) (i4) so long as no Event of Default exists has occurred and is continuing or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) the Parent Borrower shall be the continuing or surviving corporation Person or (iib) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the a “Successor Parent Borrower”), ):
(Ai) the Successor Parent Borrower shall will:
(I) be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof, Columbia,
(BII) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower, and
(III) deliver to the Administrative Agent (A) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (B) to the extent reasonably requested by the Administrative Agent, an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions;
(Cii) substantially contemporaneously with such transaction (or at a later date as agreed by the Administrative Agent),
(I) each Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Guaranty confirmed that (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guarantee Guaranty of the Obligations shall apply to (including the Successor Parent Borrower’s obligations under this Agreement, ),
(DII) each Loan Party, unless it is the other party to such merger or consolidation, shall have will, by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument in another form reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder;
(iii) confirmed that its obligations thereunder shall apply after giving pro forma effect to such incurrence, the Borrower would be permitted to incur at least $1.00 of additional Permitted Ratio Debt; and
(iv) to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to extent reasonably requested by the Administrative Agent an officer’s certificate or the Priority Revolving Agent, the Administrative Agent or the Priority Revolving Agent, as applicable, shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and an opinion other information in respect of counselthe Successor Borrower (including, each stating that such merger or consolidation if the Successor Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect of the Successor Borrower) required under applicable “know your customer” and such supplement to this Agreement or any Collateral Document comply with this Agreementanti-money laundering rules and regulations, including the USA PATRIOT Act; provided, further, provided further that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this AgreementAgreement and in the case of the disposition of all or substantially all assets, the original Borrower will be released;
(5) so long as no Event of Default has occurred and is continuing or would result therefrom, Holdings may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) Holdings will be the continuing or surviving Person or (b) if:
(i) the Person formed by or surviving any such merger or consolidation is not Holdings,
(ii) Holdings is not the Person into which the applicable Person has been liquidated, or
(iii) in connection with a disposition of all or substantially all of Holding’s assets, the Person that is the transferee of such assets is not Holdings (any such Person described in the preceding clauses (i) through (iii), a “Successor Holdings”), then the Successor Holdings will:
(I) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(II) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower,
(III) pledge 100% of the Equity Interests of the Borrower held by such Successor Holdings to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrower,
(IV) if requested by the Administrative Agent, deliver, or cause the Borrower to deliver, to the Administrative Agent (A) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this Agreement and (B) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; and
(iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided further that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement and in the case of the disposition of all or substantially all assets, the original Holdings will be released;
(6) any Restricted Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other Investment permitted pursuant to Section 7.05;
(7) a merger, dissolution, liquidation, consolidation or disposition, the purpose of which is to effect a disposition permitted pursuant to Section 7.04 or a disposition that does not constitute any Asset Sale (other than a transaction described in clause (b) of the definition of Asset Sale) shall be permitted;
(8) the Borrower, Holdings and any Restricted Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name;
(9) the Loan Parties and the Restricted Subsidiaries may consummate the Transactions; and
(10) (i) the formation, dissolution, liquidation or disposition of any Subsidiary that is a Divided LLC and (ii) any disposition to effect the formation of any Subsidiary that is a Divided LLC which disposition is not otherwise prohibited hereunder shall be permitted; provided that in each case upon formation of a Divided LLC, the Borrower complies with Section 6.11 with respect to such Divided LLC to the extent applicable.
Appears in 1 contract
Sources: First Lien Credit Agreement (Convey Holding Parent, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate (a) Consolidate or merge with or into another Person, or Dispose of Person (whether in one transaction or in a series not the Borrower is the surviving corporation) or sell, assign, transfer, convey or otherwise dispose of transactions) all or substantially all of the properties and assets of the 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 another Person, except thatunless:
(ai) Holdings either (A) the Borrower or any a Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, or (yB) the Person formed by or surviving any such consolidation or merger (if other than the Borrower or consolidation does not result in the Parent Borrower ceasing a Restricted Subsidiary, as applicable) or to be incorporated which such Disposition will have been made (1) is organized or existing under the Laws laws of the United States, any state thereof or the District of Columbia and (z2) in assumes all the case obligations of a merger the Borrower or consolidation of Holdings with and into such Restricted Subsidiary under the Parent Borrower, Holdings shall have no direct Subsidiaries at Loan Documents pursuant to agreements reasonably satisfactory to the time of such merger or consolidation other than the Parent Borrower and, Administrative Agent;
(ii) immediately after giving effect to such merger transaction, no Default or consolidation, the direct parent Event of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralDefault exists;
(iiii) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that immediately after giving effect to such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10basis, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such consolidation or merger (if other than the Borrower or consolidation is not the Parent Borrower (any such Persona Restricted Subsidiary, the “Successor Parent Borrower”as applicable), or to which such Disposition will have been made, will be permitted to incur at least $1.00 of additional Indebtedness under Section 7.03(b) or (Aii) the Successor Parent Fixed Charge Coverage Ratio immediately after such transactions would be higher than prior to such transaction; and
(iv) each Guarantor, unless such Guarantor is the Person with which the Borrower shall be an entity organized or existing has entered into a transaction under the laws of the United Statesthis covenant, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all will have by amendment to its Guaranty confirmed that its Guaranty will apply to the obligations of the Parent Borrower under or the surviving Person in accordance with this Agreement and the other Loan Documents to which the Parent Borrower is Agreement, in a party pursuant to a supplement hereto or thereto in form manner reasonably satisfactory to the Administrative Agent.
(b) Directly or indirectly, lease all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries considered as one enterprise, in one or more related transactions, to any other Person. Clauses (ii), (Ciii) each Guarantorand (iv) of Section 7.04(a) will not apply (x) to any merger, unless it consolidation or sale, assignment, transfer, conveyance or other disposition of assets (A) between or among the Borrower and any of its Restricted Subsidiaries or between the Borrower and its Restricted Subsidiaries, on the one hand, and any Subsidiary of the Borrower that is not a Restricted Subsidiary, on the other party to such merger or consolidationhand, shall have by a supplement to so long as the Guaranty confirmed that its Guarantee survivor of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement is the Borrower or a Restricted Subsidiary (as applicable) or (B) effected in connection with a Disposition permitted by Section 7.05 or an Investment permitted by Section 7.06 or (y) if, in the good faith determination of the Board of Directors of the Borrower, whose determination is evidenced by a board resolution, the sole purpose of the transaction is to this Agreement change the jurisdiction of incorporation of the Borrower.
(c) The foregoing shall not apply to (i) any transfer of assets by the Borrower to any Guarantor, (ii) any transfer of assets among Guarantors, (iii) any transfer of assets by a Restricted Subsidiary that is not a Guarantor to (x) another Restricted Subsidiary that is not a Guarantor or (y) the Borrower or any Collateral Document comply Guarantor, (iv) any merger or consolidation of two Subsidiaries so long as the surviving entity is a Restricted Subsidiary or (v) any merger or consolidation effected in connection with this Agreement; provideda Disposition permitted by Section 7.05 or an Investment permitted by Section 7.06.
(d) Upon any consolidation or merger, furtheror any sale, that if assignment, transfer, conveyance or other disposition of all or substantially all of the foregoing are satisfiedassets of the Borrower in accordance with Section 7.04(a) or (b) hereof, the Successor Parent successor formed by such consolidation or into or with which the Borrower will is merged or to which such sale, assignment, transfer, conveyance or other disposition is made shall succeed to, and be substituted forfor (so that from and after the date of such consolidation, merger, sale, assignment, conveyance or other disposition, the Parent provisions of this Agreement referring to the “Borrower” shall refer instead to the successor and not to the Borrower), and may exercise every right and power of the Borrower under this Agreement;Agreement with the same effect as if such successor Person had been named as the Borrower herein and the predecessor will be released from all obligations
Appears in 1 contract
Sources: Term Loan Credit Agreement (Western Refining, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings Parent or any Restricted Subsidiary may merge or consolidate with (i) the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings Parent with and into the Parent Borrower, Holdings Parent shall have no direct Subsidiaries at the time of such merger other than Foreign Holdings or consolidation Holdings, or (ii) Parent or any one or more other Restricted Subsidiaries other than the Borrower; provided that (A) when Parent Borrower andor any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, after giving effect to a Loan Party shall be the continuing or surviving Person and (B) in the case of a merger of Parent with another Restricted Subsidiary, Parent shall have no direct Subsidiaries at the time of such merger other than Foreign Holdings or consolidationHoldings; provided, the direct parent further that if a Specified Foreign Subsidiary is merging with another Restricted Subsidiary that is not a Subsidiary of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent andHoldings, for the avoidance of doubt, the Equity Interests of the Parent Borrower such surviving Person shall be pledged as Collaterala Guarantor;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (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 PartyParty in accordance with Sections 7.02 and 7.03, as the case may berespectively;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that 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;
(f) [reserved];
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(h) so long as no Default shall have occurred and be continuing or (in the case of the Foreign Reorganization) would result therefrom, the Foreign Reorganization and any Permitted Intercompany Transfer may be consummated.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with (i) the Parent Borrower (including a mergerBorrower, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, or (yii) any one or more other Subsidiaries; provided that any such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of involving a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary Person that is not a Loan Party may merge or consolidate with or into any other Restricted wholly owned Subsidiary of the Parent Borrower that is immediately prior to such merger shall not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lendersbe permitted unless also permitted by Section 7.02;
(cb) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or to another Restricted Subsidiary; provided that ;
(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 U.S. Loan Party or a Foreign Loan Party, then in the transferee must be a U.S. Loan Party or Foreign Loan Party, as best interests of the case may be;Borrower and is not materially disadvantageous to the Lenders; and
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with may effect a Disposition permitted by Section 7.14 for 7.05. Notwithstanding the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10foregoing, the Parent Borrower may merge with will not, nor will it permit any of its Subsidiaries to, engage to any material extent in any business other Person; provided than businesses of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement, businesses reasonably related thereto or that (i) is a reasonable extension, development or expansion thereof. It is understood that a Trust Preferred Securities Transaction consummated for purposes of financing the Parent type of business of the Borrower or Subsidiary as of the date of execution of this Agreement shall not be deemed to violate the continuing or surviving corporation or (ii) if foregoing restriction. For the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Personavoidance of doubt, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws transfer of the United States, legal ownership of any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower Trust Preferred Indebtedness permitted under this Agreement and the other Loan Documents to which the Parent Borrower is a party trustee pursuant to a supplement hereto Trust Preferred Securities Transaction shall not be deemed to be a sale, transfer, lease or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party disposition of any assets to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;trustee.
Appears in 1 contract
Fundamental Changes. MergeNCI shall not sell, dissolvetransfer, liquidatelease or otherwise dispose of any shares of stock of any of the Restricted Companies owned by it. In addition, NCI shall not merge or consolidate with any other Person unless (i) at the time thereof, and after giving effect thereto, no Default shall have occurred and be continuing, (ii) either (x) NCI shall be the continuing or surviving entity or (y) the continuing or surviving entity shall have assumed all of the obligations of NCI hereunder pursuant to an instrument in form and substance satisfactory to the Administrative Agent and shall have delivered such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by NCI pursuant to Section 5.01 upon the Effective Date or as either Agent shall have requested and (iii) the net worth (determined on a consolidated basis in accordance with GAAP) of the continuing or surviving entity immediately after giving effect thereto shall be greater than or equal to the net worth (so determined) of NCI immediately prior to giving effect thereto. No Restricted Company will merge into another or consolidate with any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all any cash or substantially all other property (including the stock of any of its assets (subsidiaries), whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary Company (other than a License Company) may merge or consolidate with into the Parent Borrower in a transaction in which the Borrower is the surviving corporation;
(including b) any Restricted Company may merge into any other Restricted Company, PROVIDED that no such merger may involve a mergerLicense Company, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that unless (x) the Parent Borrower immediately after giving effect thereto no Default shall have occurred and be the continuing or surviving Person, and (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger any License Company substantially all of whose assets consist of FCC Licenses or consolidation of Holdings with and into PUC Authorizations, the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of surviving entity in such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto License Company substantially all of whose assets consist of FCC Licenses or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the LendersPUC Authorizations;
(c) any Restricted Subsidiary Company may Dispose of all permit any other Person to merge into or substantially all of its assets (upon voluntary liquidation or otherwise) consolidate with such Restricted Company to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may beextent permitted by Section 7.04(a)(vi);
(d) any Restricted Company other than the Borrower may sell, transfer, lease or otherwise dispose of its assets to another Restricted Company, PROVIDED that no such transaction may involve a disposition of assets of any License Company unless (ix) so long as immediately after giving CREDIT AGREEMENT 90 - 84 - effect thereto no Default exists shall have occurred and be continuing and (y) in the case of any transfer of assets by a License Company substantially all of whose assets consist of FCC Licenses or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10PUC Authorizations, the Parent Borrower acquiror of such assets (after giving effect to such acquisition) is a License Company substantially all of whose assets consist of FCC Licenses or PUC Authorizations;
(e) any Restricted Company may merge with sell, transfer, lease or otherwise dispose of its assets to any other Person; provided Person on an arm's-length basis in the ordinary course of business (including dispositions of worn-out property and equipment);
(f) any Restricted Company may sell any of its assets for consideration in an amount not less than the fair market value of such assets, PROVIDED that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) at least 85% of such consideration is in the Successor Parent Borrower shall be an entity organized or existing under the laws form of the United States, any state thereof, the District of Columbia or any territory thereofcash, (B) the Successor Parent Borrower shall expressly assume all Net Cash Payments of such sale are applied to prepay the obligations of Loans and reduce the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory Commitments hereunder to the Administrative Agentextent required by Section 2.09(b)(ii), (C) each Guarantor, unless it is at the other party to time of such merger or consolidation, sale and immediately after giving effect thereto no Default shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, occurred and be continuing and (D) each Loan Partythe aggregate fair market value of all such assets sold by the Restricted Companies after the Effective Date shall not exceed, unless it is as at the other party date of any such sale, 5% of Total Consolidated Assets;
(g) the Restricted Companies may dispose of assets relating to any Mobile Communications Business (or the capital stock of any Restricted Company that owns such assets), PROVIDED that:
(i) both immediately prior to such merger or consolidationdisposition and, after giving effect thereto, no Default shall have occurred and be continuing; and
(ii) such disposition is an exchange, with another Person not an Affiliate of such Restricted Company, of such assets for assets of like kind owned by a supplement such Person (or the capital stock, or other equity ownership interest, of such Person) of equal or greater value, as determined in good faith by the Board of Directors of such Restricted Company, PROVIDED that (x) the acquisition of assets of such Person pursuant to each Security Agreement confirmed that its obligations thereunder such exchange (excluding acquisitions of FCC Licenses in exchange for other FCC Licenses for the purpose of enabling the Restricted Companies to create contiguous blocks of spectrum covered by the SMR Licenses of the Restricted Companies) shall apply comply with the provisions of Section 7.04(a)(vi) and be treated as an acquisition covered by said Section and (y) the Borrower shall have furnished to the Successor Parent Borrower’s obligations under this AgreementAgents, (E) each mortgagor promptly following request therefor, copies of a Mortgaged Property, unless it is the other party such information or documents relating to such merger or consolidation, disposition as either Agent shall have by an amendment to reasonably requested;
(h) the Restricted Companies may, whether for cash or restatement of the applicable Mortgage (non-cash or other instrument reasonably satisfactory consideration, sell, transfer, lease or otherwise dispose of (i) Non-Core Assets to NWIP or any Non-Core Company pursuant to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Nextel Partners Agreement and (Fii) other assets to NWIP or any Non-Core Company to the Parent Borrower shall have delivered extent such assets are incidental to the assets referred to in the foregoing clause (i) and the Administrative Agent an officer’s certificate and an opinion the Collateral Agent have determined that the sale, transfer, lease or other disposition of counsel, each stating that such merger or consolidation and such supplement assets is not material with respect to the interests of CREDIT AGREEMENT 91 - 85 - the Lenders under this Agreement or any Collateral Document comply of the other Loan Documents, or to the extent that the Required Lenders have consented thereto for purposes of this clause (h);
(i) the Restricted Companies may sell Off-Balance Sheet Equipment to an Off-Balance Sheet Company or other Person, for cash in an amount not less than the original purchase price or acquisition cost for such Off-Balance Sheet Equipment paid by the Restricted Companies;
(j) the Restricted Companies may sell or otherwise transfer Off-Balance Sheet Assets in connection with Off-Balance Sheet Transactions (excluding, however, Off-Balance Sheet Equipment sold in accordance with the provisions of paragraph (i) above), so long as (w) any such sale of Off-Balance Sheet Receivables qualifies as a Permitted Receivable Financing, (x) on any date the Maximum Receivables Exposure, together with the aggregate amount of Off-Balance Sheet Equipment that shall have been transferred and which remains in use, shall not exceed $500,000,000, (y) such sale is effected pursuant to documentation and in a manner that is consistent with the requirements of the Public Notes and that, in the judgment of each of the Agents, will not adversely affect the restrictions imposed by this Agreement; provided, further, that if Article VII and (z) at the foregoing are satisfied, the Successor Parent Borrower will succeed totime of such sale, and after giving effect thereto, no Default shall have occurred and be substituted forcontinuing; and
(k) the Restricted Companies may sell or otherwise transfer towers, tower sites and related transmission space and equipment pursuant to the Parent Borrower under this Master Site Commitment Agreement and the Master Site Lease Agreement;.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may The Company shall not merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate Person or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets to any Person unless (upon voluntary liquidation or otherwiseA) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Event of Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for continuing after giving effect to such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that transaction and (iB)(x) the Parent Borrower Company shall be the continuing or surviving corporation entity or (iiy)
(1) if the Person formed by or surviving any such merger or consolidation is not consolidation, or the Parent Borrower (any transferee of such Personassets, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, or the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall that expressly assume assumes all the obligations of the Parent Borrower Company under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form amendment to the Loan Documents reasonably satisfactory to the Administrative Agent, (C2) the Company and, during any Reinstated Guarantee Period, each GuarantorSubsidiary Guarantor shall have reaffirmed its obligations under the Loan Documents and (3) the Administrative Agent shall have received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the Administrative Agent and consistent with the opinions delivered on the Closing Date with respect to the Company.
(b) During any Reinstated Guarantee Requirement Period, no Subsidiary that is a Subsidiary Guarantor shall merge or consolidate with any other Person or dispose of all or substantially all of its assets to any Person unless it is (i) the other party to Company or a Subsidiary Guarantor shall be the continuing entity or shall be the transferee of such assets, (ii) (A) the Person formed by or surviving such merger or consolidation, or the transferee of such assets, shall have by be an entity organized or existing under the laws of the United States, any state thereof, or the District of Columbia that expressly assumes all the obligations of such other Subsidiary Guarantor under the Loan Documents pursuant to a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement amendment to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument Loan Document reasonably satisfactory to the Administrative Agent, (B) confirmed that the Company and each then-remaining Loan Party shall have reaffirmed its obligations thereunder shall apply to under the Successor Parent Borrower’s obligations under this Agreement Loan Documents and (FC) the Parent Borrower Administrative Agent shall have delivered received an opinion of counsel (which may be internal counsel to a Loan Party) which is reasonably satisfactory to the Administrative Agent and, if applicable, consistent with the opinions delivered on the Closing Date with respect to such Loan Party, or (iii) in connection with an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;asset sale not prohibited by Section 7.3.
Appears in 1 contract
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary (other than any Monetization Subsidiary) to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, or lease, transfer or otherwise dispose of (whether in one a single transaction or in a series of 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 (other than Monetization Subsidiaries) (in each case, except that:
whether now owned or hereafter acquired) or liquidate or dissolve; provided, that if at the time thereof and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing (ai) Holdings the Borrower or any Restricted Subsidiary may merge into or consolidate with a Person if the Parent Borrower (including or such Subsidiary if the Borrower is not a party to such merger, ) is the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (yii) any Subsidiary may merge into or consolidate with another Subsidiary; provided, that if any party to such merger or consolidation does not result in is a Subsidiary Loan Party, the Parent Borrower ceasing to Subsidiary Loan Party shall be incorporated under the Laws of surviving Person; and provided, further, that notwithstanding the United Statesforegoing, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge into or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and Party, (iiiii) any Restricted Subsidiary may liquidate sell, transfer, lease or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose otherwise dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such to a transaction is a U.S. Loan Party or a Foreign Subsidiary Loan Party, then (iv) the transferee must be Borrower and its Subsidiaries may make Asset Sales permitted in Section 7.6, (v) any Subsidiary (other than a U.S. Subsidiary Loan Party) 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 (vi) any Subsidiary that is not a Subsidiary Loan Party may merge into the Person such Subsidiary was formed to acquire or Foreign may sell, transfer, lease or otherwise dispose of all or substantially all of its assts to any other Subsidiary that is not a Subsidiary Loan Party; provided, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation involving a Person that is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party wholly-owned Subsidiary immediately prior to such merger or consolidationshall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, shall have by a supplement to the Guaranty confirmed that and will not permit any of its Guarantee Subsidiaries (other than Monetization Subsidiaries) to, engage in any business other than businesses of the Obligations shall apply to type conducted by the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is Borrower and its Subsidiaries on the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument date hereof and businesses reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;related thereto.
Appears in 1 contract
Fundamental Changes. MergeClause (a) of Section 7.03 of the Credit Agreement shall be and it hereby is amended and restated in its entirety to read as follows:
(a) The Borrower will not, dissolvenor will it permit any of its Restricted Subsidiaries to, liquidate, merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all any substantial part of its assets (whether now owned or hereafter acquired) to or in favor of any Personassets, except that:
(a) Holdings or any Restricted Subsidiary may merge of its Borrowing Base Properties (or consolidate with the Parent Borrower (including a mergerpermit any Sponsored Partnership to sell, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Persontransfer, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;lease or
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that in a transaction in which the Borrower is not a Loan Party and the surviving entity, (ii) any Restricted Subsidiary may merge into any other Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary, (iii) any Restricted Subsidiary or any Sponsored Partnership may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Restricted Subsidiary, (iv) any Restricted Subsidiary or Sponsored Partnership may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Parent Borrower (or in the case of any Sponsored Partnership the best interest of the holders of the Equity Interests of such Sponsored Partnership) and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders;
, (cv) the Borrower, any Restricted Subsidiary or any Sponsored Partnership 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 the Borrower or any of its assets Subsidiaries or that is being replaced by equipment of comparable value and utility, (upon voluntary liquidation vi) the Borrower, any Restricted Subsidiary or otherwise) any Sponsored Partnership may sell, transfer, lease or otherwise dispose of Borrowing Base Properties with a value not to exceed, in the Parent aggregate, 10% of the Borrowing Base for the Borrower or another and the Restricted Subsidiary; provided that if the transferor in such Subsidiaries, on a transaction is a U.S. Loan Party or a Foreign Loan Partyconsolidated basis, then the transferee must be a U.S. Loan Party or Foreign Loan Partybetween Scheduled Redeterminations, as the case may be;
(d) (ivii) so long as no Default Borrowing Base Deficiency exists or would result therefrom exist after giving effect to any such sale, transfer, exchange or other disposition, the Borrower, the Restricted Subsidiaries and the Parent Borrower shall be in compliance with Section 7.14 for Sponsored Partnerships may sell, transfer, exchange or otherwise dispose of Borrowing Base Properties not otherwise permitted by the Test Period then last ended calculated on foregoing clause (vi) (whether pursuant to a pro forma basis for such merger sale, transfer, exchange or consolidation in accordance with Section 1.10other disposition of all, but not less than all, of the Parent Borrower may merge with Equity Interests of any other PersonRestricted Subsidiary or otherwise); provided that (i1) the Parent Borrower consideration received in respect of such sale, transfer, exchange or other disposition shall be equal to or greater than the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws fair market value of the United StatesOil and Gas Interests subject to such sale, any state thereoftransfer, exchange or other disposition (as reasonably determined in good faith by the District board of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations directors of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to and, if requested by the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered deliver to the Administrative Agent an officer’s a certificate and an opinion of counselits chief financial officer or president certifying to that effect), each stating that such merger or consolidation and such supplement to this Agreement (2) at least 90% of the consideration received by the Borrower, any Restricted Subsidiary or any Collateral Document comply with this Agreement; providedSponsored Partnership in respect of any such sale, furthertransfer, that if the foregoing are satisfiedexchange or other disposition is cash, the Successor Parent Borrower will succeed tocash equivalents, Oil and be substituted for, the Parent Borrower under this Agreement;Gas Interests or Eighth Amendment to Amended and Restated Credit Agreement 65345478.6
Appears in 1 contract
Fundamental Changes. Merge(a) The HoldCo Borrower shall not, dissolvenor shall it permit TeamCo to, liquidate, amend its or TeamCo’s organizational documents without the prior written consent of the Agent unless such amendment would not reasonably be expected to have a Material Adverse Effect or adversely affect the rights and benefits of the Agent under the Loan Documents.
(b) The HoldCo Borrower shall not consolidate with or merge into another Personany other Person or permit any other Person to merge into it, nor shall it liquidate or Dispose of dissolve, unless (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (xi)(A) the Parent HoldCo Borrower is the surviving entity or (B) the surviving entity shall be have assumed the continuing or surviving Personobligations and liabilities of the HoldCo Borrower under the Loan Documents on terms and conditions reasonably satisfactory to the Agent in its reasonable discretion and the Agent shall have received an opinion of counsel reasonably acceptable to the Agent as to due organization, good standing, due authorization, enforceability and such other customary matters as the Agent shall reasonably request (yin each case subject to customary assumptions and qualifications for such opinions) and (ii) such merger or consolidation does would not result in the Parent Borrower ceasing to be incorporated under the Laws otherwise constitute a Default or Event of Default hereunder or a violation of any provision of the United StatesNBA Constitution or any other Membership Documents applicable to the HoldCo Borrower; provided, however, that the foregoing shall not prohibit any state thereof change in ownership or Control of the District of Columbia HoldCo Borrower that is consistent with or approved pursuant to the NBA Constitution.
(c) The HoldCo Borrower shall not shall permit TeamCo to consolidate with or merge into any other Person or permit any other Person to merge into TeamCo, nor shall it permit TeamCo to liquidate or dissolve, unless (i) TeamCo is the surviving entity and (zii) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger would not otherwise constitute a Default or consolidation, the direct parent Event of Default hereunder or a violation of any provision of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto NBA Constitution or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous Membership Documents applicable to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this AgreementTeamCo; provided, furtherhowever, that if the foregoing are satisfied, shall not prohibit any change in ownership or Control of TeamCo that is consistent with or approved pursuant to the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;NBA Constitution.
Appears in 1 contract
Sources: Credit Agreement (Madison Square Garden Sports Corp.)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into or wind up or convert into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge merge, consolidate or consolidate amalgamate with or into, or convert or wind up into the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger merger, consolidation, amalgamation, conversion or consolidation winding up does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia Columbia, and (z) in the case of a merger merger, consolidation or consolidation amalgamation of Holdings with and into or converting or winding up into the Parent Borrower, Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger merger, consolidation, amalgamation, conversion or consolidation winding up other than the Parent Borrower and, after giving effect to such merger merger, consolidation, amalgamation, conversion or consolidationwinding up, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, consolidate or consolidate amalgamate with or into or convert or wind up into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and Party, (ii) any Restricted Subsidiary may liquidate merge, consolidate or amalgamate with or into or convert or wind up into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger, consolidation, amalgamation, conversion or winding up the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary may wind up, liquidate, convert or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) through (iv) of this paragraph (b), that (A) no Event of Default shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Loan Party, as the case may beParty in accordance with Section 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 9.5;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10exist immediately after giving effect thereto, the Parent Borrower may merge merge, consolidate or amalgamate with or into, or convert into, any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger merger, consolidation, amalgamation or consolidation conversion is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, consolidation, amalgamation or consolidation conversion and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default would exist immediately after giving effect thereto, any Restricted Subsidiary may merge, consolidate, amalgamate with or into, or convert or wind up into any other Person in order to effect an Investment permitted pursuant to Section 9.2 (other than Section 9.2(e)); provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the applicable requirements of Sections 8.11 and 8.13;
(f) the Transaction may be consummated; and
(g) so long as no Default would exist immediately after giving effect thereto, a merger, dissolution, liquidation, consolidation, amalgamation, conversion, winding up or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 9.5 (other than Section 9.5(e)).
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, (i) Neither Parent nor either Borrower will merge into or consolidate with any other Person or permit any other Person to merge into another Personor consolidate with it, (ii) Parent will not, and will not permit any of its Subsidiaries to, sell, transfer, lease or Dispose otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets of Parent and its assets Subsidiaries and Excluded Subsidiaries, taken as a whole, to any other Person and (whether now owned iii) the Tranche B Borrower will not take any step that would result in (x) a change of its jurisdiction of incorporation from England and Wales or hereafter acquired(y) to or a change of its “centre of main interest” for the purposes of, and as defined in favor of any PersonArticle 3(1) of, except thatthe Regulation from England and Wales, except:
(a) Holdings any Person may merge into or any Restricted Subsidiary consolidate with Parent or a Borrower in a transaction in which Parent or such Borrower, as the case may be, is the surviving Person;
(i) either Borrower may merge or consolidate with any Person in a transaction in which such Borrower is not the surviving Person or (ii) any of Parent, either of the Borrowers and any Subsidiary of Parent Borrower may sell, transfer, lease or otherwise dispose of (including in one transaction or in a mergerseries of transactions) all or substantially all of the assets of Parent and its Subsidiaries and Excluded Subsidiaries, taken as a whole, or the purpose Equity Interests of which is all or substantially all of Parent’s Subsidiaries and Excluded Subsidiaries, taken as a whole, to reorganize the Parent Borrower into a new jurisdictionany Person (other than its Subsidiaries and Excluded Subsidiaries); provided that that:
(A) the surviving Person or the acquiring Person, as applicable, (x) agrees to assume, and has expressly assumed, all of the Parent Borrower Loans and all of such Borrower’s other representations, covenants, conditions and other obligations pursuant to this Agreement and the other Loan Documents in an agreement in form and substance reasonably satisfactory to the Administrative Agent, executed and delivered to the Administrative Agent by the surviving Person or the acquiring Person, as applicable, and (y)
(i) in the case of a transaction with the Tranche A Borrower, shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated a Person organized and existing under the Laws laws of the United States, States or any state thereof or the District of Columbia and (zii) in the case of a merger or consolidation of Holdings transaction with and into the Parent Tranche B Borrower, Holdings shall be a Person organized and existing under the laws of England and Wales, and in the case of clauses (i) and (ii), such Borrower shall have no direct Subsidiaries at procured for the time Administrative Agent and each Lender an opinion in form and substance reasonably satisfactory to the Administrative Agent and from counsel reasonably satisfactory to the Administrative Agent in respect of such merger Person and such agreement and covering the matters covered in the opinions delivered pursuant to Section 4.3 (in the case of a Person incorporated or consolidation organized in England and Wales) or Section 4.1 (in the case of any other Person, to the extent relevant or appropriate in such jurisdiction) and such other matters as the Administrative Agent may reasonably request;
(B) immediately after giving effect to such transaction or series of transactions, the Successor Moody’s Ratings and Successor S&P Ratings applicable to such successor entity shall be no lower than any Moody’s Ratings and S&P Ratings as in effect immediately prior to giving effect to such transaction or series of transactions;
(C) immediately before and after giving effect (including pro forma effect) to such transaction or series of transactions, no Default or Event of Default shall have occurred and be continuing; and
(D) each Person (other than the applicable Borrower) that is a Guarantor immediately prior to giving effect to such transaction shall have duly authorized, executed and delivered to the Administrative Agent a reaffirmation agreement in form and substance reasonably satisfactory to the Administrative Agent in respect of such Person’s Guaranty.
(c) any of Parent and either Borrower may sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of Parent and Parent’s Subsidiaries and Excluded Subsidiaries, taken as a whole, or the Equity Interests of all or substantially all of Parent’s Subsidiaries and Excluded Subsidiaries, taken as a whole, to one or more of Parent’s Subsidiaries and Excluded Subsidiaries; provided that immediately before and after giving effect (including pro forma effect) to such transaction or series of transactions, no Default or Event of Default shall have occurred and be continuing; and
(d) any Subsidiary of Parent may sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of Parent and Parent’s Subsidiaries and Excluded Subsidiaries, taken as a whole, or the Equity Interests of all or substantially all of Parent’s Subsidiaries and Excluded Subsidiaries, taken as a whole, to one or more of Parent, either Borrower, any Subsidiary of Parent and any Excluded Subsidiary; provided that, in the case of each of paragraphs (a), (b), (c) and (d) above, the Tranche B Borrower shall, after giving effect to such merger transaction or consolidationtransactions, have (x) its jurisdiction of incorporation in England and Wales and (y) its “centre of main interest” for purposes of, and as defined in Article 3(1) of, the direct parent Regulation in England and Wales and shall have no “establishment”, as that term is used in Article 2(h) of the Parent Borrower Regulation, in any other jurisdiction. The foregoing Section 6.3 shall expressly assume all the obligations not prohibit (A) dispositions of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary Margin Stock that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Partyheld as treasury stock by Parent, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by Equity Interests in Terra Nitrogen, TNCLP, or surviving any such merger OCI Partners LP that constitute Margin Stock, or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Acquisition Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;Transactions.
Appears in 1 contract
Sources: 364 Day Bridge Credit Agreement (CF Industries Holdings, Inc.)
Fundamental Changes. MergeThe Borrower shall not, dissolvenor shall the Borrower permit any Restricted Subsidiary to, liquidateconsolidate, consolidate amalgamate or merge with or into or wind up into another Person, or Dispose liquidate or dissolve or dispose of (whether in one transaction or in a series of 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) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, merger the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that that
(xa) the Parent Borrower shall be the continuing or surviving Person, ,
(yb) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and Columbia, and
(zc) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, ,
(i) Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower,
(ii) Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, Borrower,
(iii) no Event of Default exists at such time or after giving effect to such merger or consolidationtransaction and
(iv) after giving effect to such transaction, the a direct parent of the Parent Borrower shall will (I) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent andand the Borrower, for the avoidance (II) pledge 100% of doubt, the Equity Interests of the Parent Borrower shall be pledged to the Administrative Agent as CollateralCollateral to secure the Obligations in form reasonably satisfactory to the Administrative Agent and the Borrower, (III) have no direct Subsidiaries other than the Borrower, (V) execute a supplement to the Security Agreement (or in another form reasonably satisfactory to the Administrative Agent), to grant or pledge its assets thereunder and (VI) execute other documentation the Administrative Agent may reasonably request in accordance with the Collateral and Guarantee Requirement;
(ia) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party;
(b) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party; provided that (x) a Loan Party shall be the continuing or surviving Person and (iiy) if such merger or consolidation includes the Borrower, the Borrower shall be the continuing or surviving Person;
(c) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party or Restricted Subsidiary in another jurisdiction in the United States will be permitted; provided that if such transaction involves a Loan Party, a Loan Party shall be the continuing or surviving Person; and
(d) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided that in the case of clause (d), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or the definition of “Permitted Investments”;
(c3) any Restricted Subsidiary may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in any such a transaction disposition (upon voluntary liquidation or otherwise) that is a U.S. Restricted Payment by any Loan Party or to any Restricted Subsidiary that is not a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may beshall otherwise be permitted under Section 7.05;
(d) (i4) so long as no Event of Default exists has occurred and is continuing or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (ia) the Parent Borrower shall be the continuing or surviving corporation Person or (iib) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (or, in connection with a disposition of all or substantially all of the Borrower’s assets, is the transferee of such assets) (any such Person, the a “Successor Parent Borrower”), ):
(Ai) the Successor Parent Borrower shall will:
(I) be an entity organized or existing under the laws of the United States, any state thereof, thereof or the District of Columbia or any territory thereof, Columbia,
(BII) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower,
(III) execute any documentation the Administrative Agent may reasonably request in accordance with the Collateral and Guarantee Requirement,
(IV) have 100% of its issued and outstanding Equity Interests pledged to the Administrative Agent Collateral to secure the Obligations in accordance with the Security Agreement,
(V) execute a supplement to the Security Agreement (or in another form reasonably satisfactory to the Administrative Agent), as applicable, to grant or pledge its assets thereunder and
(VI) deliver to the Administrative Agent (A) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (B) to the extent reasonably requested by the Administrative Agent, an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions;
(Cii) substantially contemporaneously with such transaction (or at a later date as agreed by the Administrative Agent),
(I) each Guarantor, unless it is the other party to such merger or consolidation, shall have will by a supplement to the Guaranty confirmed that (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guarantee Guaranty of the Obligations shall apply to (including the Successor Parent Borrower’s obligations under this Agreement), and
(DII) each Loan Party, unless it is the other party to such merger or consolidation (and not surviving such merger or consolidation), shall have will, by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument in another form reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder;
(iii) confirmed that its obligations thereunder shall apply [reserved]; and
(iv) to the Successor Parent Borrower’s obligations under this Agreement and (F) extent reasonably requested by the Parent Borrower shall have delivered to Administrative Agent, the Administrative Agent an officer’s certificate shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and an opinion other information in respect of counselthe Successor Borrower (including, each stating that such merger or consolidation if the Successor Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect of the Successor Borrower) required under applicable “know your customer” and such supplement to this Agreement or any Collateral Document comply with this Agreementanti-money laundering rules and regulations, including the USA PATRIOT Act; provided, further, provided further that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this AgreementAgreement and in the case of the disposition of all or substantially all assets, the original Borrower will be released;
(5) so long as no Event of Default has occurred and is continuing or would result therefrom, Holdings may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person; provided that (a) Holdings will be the continuing or surviving Person or (b) if:
(i) the Person formed by or surviving any such merger or consolidation is not Holdings,
(ii) Holdings is not the Person into which the applicable Person has been liquidated or
(iii) in connection with a disposition of all or substantially all of Holdings’ assets, the Person that is the transferee of such assets is not Holdings (any such Person described in the preceding clauses (i) through (iii), a “Successor Holdings”), then the Successor Holdings will:
(I) be an entity organized or existing under the laws of the United States, any state thereof or the District of Columbia,
(II) expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and the Borrower,
(III) pledge 100% of the Equity Interests of the Borrower held by such Successor Holdings to the Administrative Agent as Collateral to secure the Obligations in accordance with the Security Agreement or otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrower,
(IV) execute a supplement to the Security Agreement (or in another form reasonably satisfactory to the Administrative Agent), to grant or pledge its assets thereunder,
(V) execute any documentation the Administrative Agent may reasonably request in accordance with the Collateral and Guarantee Requirement and
(VI) if requested by the Administrative Agent, deliver, or cause the Borrower to deliver, to the Administrative Agent (A) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Collateral Document (as applicable) comply with this Agreement and (B) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent; and
(iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Holdings required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided further that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement and in the case of the disposition of all or substantially all assets, the original Holdings will be released;
(6) any Restricted Subsidiary may merge or consolidate with (or dispose of all or substantially all of its assets to) any other Person in order to effect a Permitted Investment or other Investment permitted pursuant to Section 7.05;
(7) a merger, dissolution, liquidation, consolidation or disposition, the purpose of which is to effect a disposition permitted pursuant to Section 7.04 or a disposition that does not constitute any Asset Sale (other than a transaction described in clause (b) of the definition of Asset Sale) shall be permitted;
(8) the Borrower, Holdings and any Restricted Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name; and
(9) the Loan Parties and the Restricted Subsidiaries may consummate the Transactions.
Appears in 1 contract
Fundamental Changes. Merge, dissolve, liquidate, recapitalize, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default has occurred and is continuing or would result therefrom:
(a) Holdings any Borrower or any Restricted Significant Subsidiary that is a Loan Party may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction)any Domestic Subsidiary; provided that (xi) the Parent Borrower shall such Loan Party will be the continuing or surviving Person; or (ii) if such Loan Party is not the continuing or surviving Person, then (yA) such Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia and (zB) in concurrently with the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time effectiveness of such merger or consolidation other than consolidation, the Parent Borrower and, continuing or surviving Domestic Subsidiary will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the provisions of the Loan Documents after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(b) any Significant Subsidiary may merge or consolidate with (i) any Restricted Loan Party, provided that (A) such Loan Party will be the continuing or surviving Person or (B) if such Loan Party is not the continuing or surviving Person, then (1) such Subsidiary will be a Domestic Subsidiary, (2) the Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation and (3) concurrently with the effectiveness of such merger or consolidation, such Domestic Subsidiary will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the provisions of the Loan Documents after giving effect to such merger or consolidation; (ii) any one or more other Domestic Subsidiaries that is not a Loan Party may merge Party, provided that if any merger or consolidate with consolidation of two such Domestic Subsidiaries which are not Loan Parties results in the creation of a Material Subsidiary, such resulting Subsidiary will be subject to Section 6.12; or into (iii) any other Restricted Foreign Subsidiary; provided that such merging or consolidating Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the LendersParty;
(c) any Restricted Subsidiary Parent may Dispose re-incorporate in Delaware (whether as a result of all or substantially all of its assets (upon voluntary liquidation a merger, conversion or otherwise) so long as (i) Parent provides Administrative Agent with written notice at least ten days prior to the consummation of such re-incorporation (provided that such notice requirement shall be satisfied by Parent Borrower making available the related proxy materials to Administrative Agent in accordance with Section 6.01, it being understood that such re-incorporation may be effected immediately following the approval thereof by the Parent’s shareholders); (ii) such re-incorporation does not conflict with, or another Restricted Subsidiarywill not result in any breach of, or constitute a default under (nor constitute any event which with notice, lapse of time or both would constitute a breach of or default under), any lease agreement, commitment or other instrument where such conflict, breach or default could reasonably be expected to cause a Material Adverse Change (unless the counterparty to such lease agreement, commitment or other instrument has consented to such re-incorporation); (iii) the consummation of the re-incorporation will not conflict with, or result in a violation of, any Law applicable to Parent or the successor corporation where such violation would constitute a breach of Section 6.07; (iv) as soon as possible, and in any event within three Business Days, following the effectiveness of such re-incorporation, a Responsible Officer of Parent will (A) certify each of the conditions set forth in clauses (i) through (v) and (B) attach to such certification (1) a certified copy of the successor corporation’s certificate of incorporation, (2) a certified copy of the certificate of merger, if any, (3) the resolutions of the Board of Directors of each of Parent and the successor corporation approving the re-incorporation, and (4) the successor corporation’s bylaws; provided that if Parent has not received either the transferor certificate of incorporation of the successor corporation described in clause (1) and/or the certificate of merger describe in clause (2), in either case, in certified form from the Delaware Secretary of State, such certificate of Parent’s Responsible Officer will attach a transaction is a U.S. Loan Party or a Foreign Loan Party, then copy of the transferee must be a U.S. Loan Party or Foreign Loan Partycertificate of incorporation and/or certificate of merger, as the case may be, in the form as such document was submitted to the Delaware Secretary of State to effect such re-incorporation, and Parent will promptly, and in any event no later than three Business Days, deliver the certified copy to Administrative Agent upon receipt thereof; and (vi) concurrently with the effectiveness of such re-incorporation, the successor to Parent will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such successor’s assumption of all of the Obligations of Parent and to comply with the provisions of the Loan Documents after giving effect to such re-incorporation;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance connection with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10any Permitted Acquisition, the Parent Borrower any Significant Subsidiary may merge into or consolidate with any other PersonPerson or permit any other Person to merge into or consolidate with it; provided that (i) the Parent Person surviving such merger will be a directly or indirectly wholly-owned Subsidiary of a Borrower shall be the continuing or surviving corporation or and (ii) in the case of any such merger to which any Loan Party is a party, (A) such Loan Party is the surviving Person, or (B) if such Loan Party is not the surviving Person, then (1) such surviving Person formed by or surviving will be a Domestic Subsidiary, (2) the Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation is not and (3) concurrently with the Parent Borrower (any effectiveness of such merger or consolidation, such surviving Person will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such surviving Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws ’s assumption of all of the United States, any state thereof, Obligations of such merging or consolidating Loan Party and to comply with the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations provisions of the Parent Borrower under this Agreement and the other Loan Documents to which (including the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (Crequirements of Section 6.12) each Guarantor, unless it is the other party after giving effect to such merger or consolidation; and
(e) the liquidation or dissolution of any Subsidiary; provided that, shall have by in the case of any Subsidiary that is a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it (i) the Borrowers provide written notice to Administrative Agent at least ten days prior to the effectiveness of such liquidation or dissolution and (ii)(A) all assets and property of such Subsidiary is the other party transferred to another Loan Party or (B) if such assets and property are transferred to another Subsidiary, (1) such recipient Subsidiary is a Domestic Subsidiary and (2) if such transfer of assets and property to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to recipient Subsidiary results in the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor creation of a Mortgaged PropertyMaterial Subsidiary, unless it is upon the other party effectiveness of such transfer of assets or property the Borrowers will comply with Section 6.12 with respect to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;recipient Subsidiary.
Appears in 1 contract
Fundamental Changes. Merge(a) The Borrower will not, dissolveand will not permit any Subsidiary Loan Party to, liquidate, merge into or consolidate with or into another any other Person, or Dispose of (whether in one transaction permit any other Person to merge into or in a series of transactions) all consolidate with it, or substantially all of its assets (whether now owned liquidate or hereafter acquired) to or in favor of any Persondissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (ai) Holdings or any Restricted Subsidiary may merge or consolidate with into the Parent Borrower in a transaction in which the Borrower is the surviving corporation, (including ii) the Borrower may merge into a merger, wholly owned Subsidiary of the Borrower for the sole purpose of which is to reorganize effecting a change in the Parent Borrower into a new jurisdiction); jurisdiction of organization of the Borrower, provided that (xA) the Parent Borrower shall be the continuing or surviving Personsuch Subsidiary is not a Foreign Subsidiary, (yB) such merger or consolidation does not result Subsidiary is a corporation organized for the sole purpose of effecting a change in the Parent Borrower ceasing to be incorporated under the Laws jurisdiction of organization of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, prior to the consummation of such merger, owns no Equity Interests in any entity, (C) after giving effect to such merger or consolidationmerger, such Subsidiary shall be the direct parent surviving entity and, for purposes of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents Documents, shall be deemed to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory be the “Borrower” and shall succeed to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party rights and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto Documents, and such Subsidiary shall enter into an instrument in form and substance reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless Agent stating that it is has become the “Borrower” and has succeeded to the rights and obligations of the Borrower under this Agreement and the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this AgreementLoan Documents, (D) each Loan Party, unless it is the other party immediately after giving effect to such merger or consolidationmerger, shall have by each Person that was a supplement to each Security Agreement confirmed that its obligations thereunder shall apply shareholder of the Borrower prior to the Successor Parent Borrower’s obligations under this Agreementconsummation of such merger shall become a shareholder of such Subsidiary, and each such Person shall own Equity Interests in the reorganized Borrower having an aggregate voting power equal to those Equity Interests in the Borrower held by such Person prior to such merger, (E) each mortgagor the Administrative Agent shall have received notice of such merger 30 days prior to the consummation of such merger, (F) prior to the consummation of such merger, the Borrower shall have taken all actions necessary pursuant to Section 5.13 to cause the Collateral and Guarantee Requirement to be and remain satisfied after giving effect to the merger and (G) the Borrower and such Subsidiary shall deliver all legal opinions relating to the matters set forth in the preceding clauses (A) through (F) as may be reasonably requested by the Administrative Agent, (iii) any Subsidiary Loan Party may merge into any Subsidiary Loan Party in a Mortgaged Propertytransaction in which the surviving entity is a Subsidiary Loan Party, unless (iv) the Borrower may permit another Person to merge into it (A) in order to effect a Permitted Acquisition in which the Borrower is the surviving entity or (B) in any case where no Change in Control occurs as a result thereof, the Borrower is in compliance with the covenants set forth in Sections 6.13 and 6.14 both before and after (and giving pro forma effect to) such transaction, and the Borrower is the surviving entity, (v) a Subsidiary Loan Party may merge into another Person, or may permit another Person to merge into it, in order to effect a Permitted Acquisition in which the surviving entity is a Subsidiary Loan Party and (vi) any Subsidiary Loan Party (other party than a License 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; provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger or consolidationshall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, shall have by an amendment to or restatement and will not permit any of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed Subsidiary Loan Parties to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and be substituted for, the Parent Borrower under this Agreement;Subsidiary Loan Parties on the Effective Date and businesses reasonably related thereto.
Appears in 1 contract
Sources: Credit Agreement (Cumulus Media Inc)
Fundamental Changes. Merge, dissolve, liquidate, (a) The Borrower will not merge into or consolidate with or into another any other Person, or Dispose permit any other Person to merge into or consolidate with the Borrower, consummate a Division as the Dividing Person, or sell, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) ), all or substantially all of its assets (the Borrower’s assets, whether now owned or hereafter acquired) to acquired (including stock of its Subsidiaries), or in favor of any Personliquidate or dissolve, except that:
, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (ai) Holdings or any Restricted Subsidiary Person may merge or consolidate with into the Parent Borrower in a transaction in which the Borrower is the surviving corporation, (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (xii) the Parent Borrower shall be may consummate a Division as the continuing or surviving Person, Dividing Person if either (yA) such merger or consolidation Division does not result in a transfer of the Parent Borrower’s obligations hereunder, and after giving effect thereto, the Borrower ceasing owns all or substantially all assets owned by the Borrower immediately prior to be incorporated such Division or (B) if such Division results in a transfer of the Borrower’s obligations hereunder, (1) the Borrower transfers its obligations hereunder to a transferee (the “Resulting Borrower”) that is of an Investment Grade Rating equal to or higher than the Borrower’s rating and the Resulting Borrower assumes, pursuant to the terms of such transaction, all of the obligations of the Borrower under the Laws Loan Documents and such assumption is evidenced by an agreement executed and delivered to the Lenders within 30 days of such transaction in a form reasonably satisfactory to the United States, any state thereof or the District of Columbia Required Lenders and (z2) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidationDivision, the direct parent Resulting Borrower owns all or substantially all assets owned by the Borrower immediately prior to such Division and (iii) any Person may merge with the Borrower as long as the surviving entity, if other than the Borrower, is of an Investment Grade Rating equal to or higher than the Parent Borrower shall expressly assume all Borrower’s rating and so long as the surviving entity assumes, pursuant to the terms of such transaction, each of the obligations of Holdings the Borrower under this Agreement and the other Loan Documents and such assumption is evidenced by an agreement executed and delivered to which Holdings is the Lenders within 30 days of such transaction in a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent andRequired Lenders. Without limiting the generality of the foregoing, the transfer of more than 50% of the Borrower’s Consolidated Total Assets shall be deemed, for the avoidance purposes of doubtthis Section 6.03(a), the Equity Interests of the Parent Borrower shall be pledged as Collateral;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if not materially disadvantageous to the Lenders;
(c) any Restricted Subsidiary may Dispose transfer of all or substantially all of its the assets (upon voluntary liquidation or otherwise) to of the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then the transferee must be a U.S. Loan Party or Foreign Loan Party, as the case may be;Borrower.
(db) (i) so long as no Default exists or would result therefrom The Borrower will not, and the Parent Borrower shall be will not permit any of its Material Subsidiaries to, engage to any material extent in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10, the Parent Borrower may merge with any business other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws than businesses of the United States, any state thereof, type conducted by the District of Columbia or any territory thereof, (B) Borrower and its Subsidiaries on the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement Revolving Effective Date and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form businesses reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;related thereto.
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Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into or wind up or convert into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge merge, consolidate or consolidate amalgamate with or into, or convert or wind up into the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger merger, consolidation, amalgamation, conversion or consolidation winding up does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia Columbia, and (z) in the case of a merger merger, consolidation or consolidation amalgamation of Holdings with and into or converting or winding up into the Parent Borrower, Holdings shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger merger, consolidation, amalgamation, conversion or consolidation winding up other than the Parent Borrower and, after giving effect to such merger merger, consolidation, amalgamation, conversion or consolidationwinding up, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for (acting at the avoidance of doubt, the Equity Interests direction of the Parent Borrower shall be pledged as CollateralRequisite Lenders);
(i) any Restricted Subsidiary that is not a Loan Party may merge merge, consolidate or consolidate amalgamate with or into or convert or wind up into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party and Party, (ii) any Restricted Subsidiary may liquidate merge, consolidate or amalgamate with or into or convert or wind up into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger, consolidation, amalgamation, conversion or winding up the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iv) any Restricted Subsidiary may wind up, liquidate, convert or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its the Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) through (iv) of this paragraph (b), that (A) no Event of Default shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Loan Party, as the case may beParty in accordance with Section 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 9.5;
(d) (i) so long as no Default exists or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10exist immediately after giving effect thereto, the Parent Borrower may merge merge, consolidate or amalgamate with or into, or convert into, any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger merger, consolidation, amalgamation or consolidation conversion is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative AgentAgent (acting at the direction of, or with the consent of, the Requisite Lenders), (C) each Guarantor, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative AgentCollateral Agent (acting at the direction of, or with the consent of, the Requisite Lenders)) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement Agreement, and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger merger, consolidation, amalgamation or consolidation conversion and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default would exist immediately after giving effect thereto, any Restricted Subsidiary may merge, consolidate, amalgamate with or into, or convert or wind up into any other Person in order to effect an Investment permitted pursuant to Section 9.2 (other than Section 9.2(e)); provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the applicable requirements of Sections 8.11 and 8.13;
(f) the Transaction may be consummated; and
(g) so long as no Default would exist immediately after giving effect thereto, a merger, dissolution, liquidation, consolidation, amalgamation, conversion, winding up or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 9.5 (other than Section 9.5(e)).
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Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) Holdings or any Restricted Subsidiary may merge or consolidate with the Parent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that (x) the Parent Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Parent Borrower ceasing to be incorporated organized under the Laws of the United States, any state thereof or the District of Columbia and (z) in the case of a merger or consolidation of Holdings with and into the Parent Borrower, Holdings shall not be an obligor in respect of any Qualified Holding Company Debt or other Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Parent Borrower and, after giving effect to such merger or consolidation, the direct parent of the Parent Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and, for the avoidance of doubt, the Equity Interests of the Parent Borrower shall be pledged as CollateralAgent;
(i) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Parent Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (iiiv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and if is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) through (iv) of this paragraph (b), that (A) no Event of Default shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a U.S. Loan Party or a Foreign Loan Party, then (i) the transferee must be a U.S. Loan Party or Foreign (ii) such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Loan Party, as the case may beParty in accordance with Section 9.2 (other than clause (e) thereof) and must be a permitted Disposition in accordance with Section 9.5;
(d) (i) so long as no Default exists or Event of Default is continuing or would result therefrom and the Parent Borrower shall be in compliance with Section 7.14 for the Test Period then last ended calculated on a pro forma basis for such merger or consolidation in accordance with Section 1.10therefrom, the Parent Borrower may merge or consolidate with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee of the Obligations shall apply to the Successor Parent Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to each the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement, and (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Parent Borrower’s obligations under this Agreement and (F) the Parent Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) so long as no Default or Event of Default is continuing or would result therefrom, any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 9.2 (other than Section 9.2(e)); provided that 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 Sections 8.11, 8.12 and 8.13; and
(f) so long as no Default or Event of Default is continuing or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 9.5 (other than Section 9.5(e)).
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Sources: Credit Agreement (JOANN Inc.)