Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity. (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries that are Guarantors (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing or would result therefrom:
(i) any Subsidiary may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving entity, corporation,
(ii) any Subsidiary that is (whether or not a Subsidiary Guarantor Guarantor) may merge into or consolidate with any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entity, a Guarantor,
(iii) any Non-Guarantor Subsidiary Guarantor may merge into or consolidate with any other Non-Guarantor Subsidiary; provided that if, after giving effect to such merger or consolidation, such surviving Subsidiary Guarantoris a Material Subsidiary, then such Material Subsidiary shall promptly (and in any event not less than 10 Business Days after such merger or consolidation) comply with the provisions of Section 5.09;
(iv) any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution or otherwise) to the Borrower or to another Subsidiary; provided, that if the transferor in such a transaction is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, then (A) the transferee must be either the Borrower or another Guarantor or (B) to the extent constituting an investment, such investment must be an investment permitted under Section 6.04;
(v) any Non-Guarantor Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower any Loan Party or any other Non-Guarantor Subsidiary; provided that if, after giving effect to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sellsuch sale, transfer, lease or otherwise dispose disposition, such transferee is a Material Subsidiary, then such Material Subsidiary shall promptly (and in any event not less than 10 Business Days after such sale, transfer, lease or disposition) comply with the provisions of its assets Section 5.09;
(vi) the Borrower and any Subsidiary may merge with any other Person in order to effect (A) an investment or Acquisition permitted pursuant to Section 6.04, provided that the Borrower or a Guarantor shall be the surviving Person of any merger involving the Borrower or a Guarantor, respectively, or (B) a disposition not prohibited by this Section 6.03; provided that prior to another Subsidiarythe consummation of such disposition, the Administrative Agent has received evidence satisfactory to the Administrative Agent that such Subsidiary is not a Material Subsidiary as determined immediately prior to such merger; and
(vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines may merge with another corporation in good faith that order to change the Borrower’s jurisdiction of organization; provided that:
(A) the entity so formed by or resulting from such liquidation merger is an entity organized or dissolution is in existing under the best interests laws of the United States, any state thereof or the District of Columbia;
(B) the entity so formed by or resulting from such merger assumes all the obligations of the Borrower and under the Loan Documents to which the Borrower is not materially disadvantageous a party pursuant to agreements reasonably satisfactory to the Lenders, Administrative Agent; and
(C) immediately before and (viii) any Person may merge into the Borrower after giving effect to such merger no Default or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entityEvent of Default shall have occurred and be continuing.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary ancillary thereto.
Appears in 1 contract
Sources: Credit Agreement (Brink's Home Security Holdings, Inc.)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Subsidiary of its Restricted Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries Oil and Gas Interests (including any contribution or transfer of Oil and Gas Interests in connection with the formation of any joint venture or partnership with any Person that is not a Restricted Subsidiary) or any of the Equity Interests of any Restricted Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, (i) the Borrower or any Restricted Subsidiary may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business, and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (iii) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (iiiii) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into any other Restricted Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantora Restricted Subsidiary, (iv) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Restricted Subsidiary, (viiv) any Restricted Subsidiary that is not a Subsidiary Guarantor 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 (viiivi) any Person may merge into the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of equipment and related items in connection with an Acquisition where the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility, and (vii) the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of any of its Oil and Gas Interests and the Equity Interests of any Restricted Subsidiary; provided that (A) the consideration received in respect of such sale or other disposition shall be equal to or greater than the fair market value of such assets subject to the sale or other disposition (as reasonably determined by, in the case of any sale or disposition of assets with a value equal to or greater than $15,000,000, the Board of Directors of the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver a certificate of a Responsible Officer certifying to that effect), (B) 100% of the consideration for such sale or other disposition shall be in the form of cash or Permitted Investments and (C) to the extent that the aggregate Net Cash Proceeds from all such sales or other dispositions since the Effective Date exceed $10,000,000, no later than one Business Day after the receipt by Borrower or any Restricted Subsidiary is of such Net Cash Proceeds, Borrower shall prepay the surviving entityRevolving Loans to the extent required to cause the Revolving Commitment to exceed the Revolving Credit Exposure by an amount equal to ten percent (10%) of the Revolving Commitment and use all of the remaining Net Cash Proceeds to prepay the Loans to the extent permitted under the Revolving Credit Agreement as in effect on the Effective Date.
(b) The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and after giving effect to the Transactions and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Senior Unsecured Term Credit Agreement (Exco Resources Inc)
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all ), or substantially all engage in a sale/leaseback transaction with respect to, any substantial part of its assets, any trade receivables (other than an assignment in connection with the collection thereof in the ordinary course of business), 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, 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, continuing (i) any Subsidiary Subsidiary/Person may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor Subsidiary/Person may merge into any a Material Domestic Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entitya Material Domestic Subsidiary, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantora Material Domestic Subsidiary, (viiv) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 the assets of such Subsidiary are distributed to Borrower in liquidation or dissolution, (v) Borrower may sell its investment in ▇▇▇▇▇▇ Zwiesel Glaswerke, AG for consideration (whether cash, property or other consideration) of not materially disadvantageous to the Lendersless than 7,500,000 DM, and (viiivi) Borrower and its Subsidiaries may sell, transfer, or otherwise dispose of (in one transaction or a series of transactions), or engage in a sale/leaseback transaction with respect to, assets if the consideration received is in cash or cash equivalents at least equal to the fair market value of such assets and the aggregate consideration received does not exceed $15,000,000 for all such sales, transfers, or dispositions; provided that any such merger permitted by clauses (i) or (ii) above involving a Person may merge into the Borrower or any that is not a wholly owned Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoTableware Business.
Appears in 1 contract
Sources: Credit Agreement (Oneida LTD)
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary to, (i) whether pursuant to a Delaware LLC Division, Delaware LP Division or otherwise, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or (ii) sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all all/any substantial part 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), (iii) whether pursuant to a Delaware LLC Division, Delaware LP Division or otherwise, liquidate or dissolve, (iv) divide into two or more Persons, including becoming a Delaware Divided LLC or Delaware Divided LP (whether or not the original Person survives such division) or (v) create, or reorganize into, one or more series pursuant to a Delaware LLC Division or Delaware LP Division, or except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing, exists or would result therefrom:
(a) any Person (other than any Subsidiary Owner) may merge or consolidate with or into (i) any Subsidiary may merge into the Borrower in a transaction in which or Assignor, provided that the Borrower or Assignor, as applicable, shall be the continuing or surviving Person and there is the surviving entityno Change in Control, or (ii) any Subsidiary one or more other Subsidiaries, including newly formed Subsidiaries, provided that is not a Subsidiary Guarantor may merge into when any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge merging or consolidating with or into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other another Subsidiary that is not a Subsidiary Guarantor, the Subsidiary Guarantor shall be the continuing or surviving Person or the other Subsidiary shall become a Subsidiary Guarantor in accordance with Section 5.11;
(vb) any Subsidiary Guarantor may merge, dissolve or liquidate, or sell, transfer, lease or otherwise dispose of any, all or substantially all of its assets, and Borrower may sell, transfer or otherwise dispose of any or all of its direct and indirect Equity Interests in any Subsidiary, provided that if such Subsidiary owns a Property that had been included as an Unencumbered Property, Borrower shall have complied with the requirements of Section 2.23(b) for removal of such Unencumbered Property;
(c) Any Loan Party may sell, transfer, lease or otherwise dispose of any, all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower any other Loan Party (or to another any Person that becomes concurrently with such sale, transfer, lease or other disposition a Loan Party pursuant to Section 5.11); provided, that concurrently with such sale, transfer, lease or other disposition of an Unencumbered Property or Collateral, the Loan Party or other Person to which such assets were sold, transferred, leased or otherwise disposed becomes a Subsidiary GuarantorGuarantor and/or Assignor, as applicable, and complies with the provisions of Sections 2.23 and 5.11; and
(vid) any Any Subsidiary that is not a Subsidiary Guarantor Loan Party may sellmerge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, pursuant to a Delaware LLC Division or Delaware LP Division and may consummate any transaction described in clauses (iv) and (v) above. For the avoidance of doubt, if, as a result of any transaction permitted under this Section 6.03, any Unencumbered Property hereunder no longer meets the definition of a “Unencumbered Property” or otherwise fails to satisfy the requirements for inclusion in the pool of Unencumbered Properties set forth herein, such Property will immediately upon such sale, transfer, lease or otherwise dispose of its assets other disposition cease to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is be included in the best interests pool of the Borrower and is not materially disadvantageous to the Lenders, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entityUnencumbered Properties.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not[, and nor will not it permit any [Material] Subsidiary to,] merge, merge into or dissolve, liquidate, consolidate with any other or into another Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired), ) to or liquidate or dissolvein favor of any Person, except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing, (i) exists or would result therefrom: any Subsidiary may merge into with (i) the Borrower, provided that the Borrower in a transaction in which shall be the Borrower is the continuing or surviving entityPerson, or (ii) any one or more other Subsidiaries[, provided that when any [Wholly-Owned] Subsidiary that is not merging with another Subsidiary, a [Wholly-Owned] Subsidiary Guarantor may merge into shall be the continuing or surviving Person]; any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease Dispose of all or otherwise dispose substantially all of its assets to the Borrower (upon voluntary liquidation or to another Subsidiary Guarantor, (viotherwise) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary [; provided that is not a Subsidiary Guarantor may liquidate or dissolve if the transferor in such a transaction is a [Wholly-Owned] Subsidiary, then the transferee shall either be the Borrower determines in good faith that such liquidation or dissolution is in the best interests of another [Wholly-Owned] Subsidiary]]; the Borrower and is not materially disadvantageous its [Material] Subsidiaries may make Dispositions permitted by Section 6.04; any Investment permitted by Section 6.06 may be structured as a merger, consolidation or amalgamation; and any Subsidiary may dissolve, liquidate or wind up its affairs if it owns no material assets, engages in no business and otherwise has no activities other than activities related to the Lenders, maintenance of its existence and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) good standing. . The Borrower will not, and will not permit any of its Subsidiaries [Material] Subsidiary to, engage make any Disposition or enter into any agreement to make any Disposition, except: Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business; Dispositions of inventory and Investments in the ordinary course of business; Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; Dispositions of property by any [Material] Subsidiary to the Borrower or to a [Wholly-Owned] Subsidiary; Dispositions permitted by Section 6.03; leases, licenses, subleases or sublicenses (including the provision of open source software under an open source license) granted in the ordinary course of business and on ordinary commercial terms that do not interfere in any material respect with the business of the Borrower and its Subsidiaries; Dispositions of intellectual property rights that are no longer used or useful in the business of the Borrower and its Subsidiaries; the discount, write-off or Disposition of accounts receivable overdue by more than [____] days or the sale of any such accounts receivable for the purpose of collection to any material extent collection agency, in each case in the ordinary course of business; the unwinding of any business other than businesses substantially of Swap Contract so long as the type conducted Swap Termination Value associated therewith does not exceed $[____]; Restricted Payments permitted by Section 6.05 and Investments permitted by Section 6.06; and Dispositions by the Borrower and its Subsidiaries on not otherwise permitted under this Section; provided that the date aggregate book value of execution all property Disposed of pursuant to this Agreement and businesses reasonably related or complementary thereto.clause (k) in any fiscal year shall not exceed $[____].]67
Appears in 1 contract
Sources: Credit Agreement
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary of its Restricted Subsidiaries to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock Capital Stock of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided that if, except that, if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuingcontinuing and subject to and without limitation of Section 5.12 and Section 5.13, (i) the Borrower or any Restricted Subsidiary may merge into with a Person if the Borrower in a transaction in which (or such Restricted Subsidiary if the Borrower is not a party to such merger) is the surviving entityPerson and such surviving Person (if not the Borrower) is a Wholly-Owned Subsidiary and if any party to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person, (ii) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into another Restricted Subsidiary, provided that if any party to such merger is a Subsidiary Guarantor in a transaction in which Loan Party, the Subsidiary Guarantor is Loan Party shall be the surviving entityPerson, (iii) any Restricted Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another Subsidiarya Subsidiary Loan Party, and (viiiv) any Restricted Subsidiary that is not a Subsidiary Guarantor 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 LendersLenders and if such Subsidiary is a Subsidiary Loan Party, and (viii) any Person may merge into all assets of such Subsidiary have been transferred to the Borrower or a Subsidiary Loan Party prior to, or substantially contemporaneously with, such liquidation or dissolution; provided, further, that any such merger involving a Person that is not a Wholly-Owned Subsidiary in connection immediately prior to or after such merger shall not be permitted unless also permitted by Section 7.4 and no such merger shall be permitted with an Acquisition where Unrestricted Subsidiary; provided, further, that, notwithstanding anything to the contrary in this Agreement, neither the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not permit nor any of its Subsidiaries toshall (i) merge or consolidate into WaterBridge Operating LLC, engage a Delaware limited liability company, or any of its Subsidiaries, (ii) sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) to WaterBridge Operating LLC, or any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on or (iii) otherwise be controlled by WaterBridge Operating LLC or any if its Subsidiaries, and this proviso may not be waived, amended or modified without the date consent of execution of this Agreement and businesses reasonably related or complementary theretoeach Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (WaterBridge Infrastructure LLC)
Fundamental Changes. (a) The Borrower will notEnter into any merger, and will not permit any Subsidiary to, merge into consolidation or consolidate with any other Personamalgamation, or permit liquidate, wind up or dissolve itself (or suffer any other Person to merge into liquidation or consolidate with itdissolution), or sellDispose of, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, property 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 dissolvebusiness, except that:
(a) any Subsidiary of the US Borrower may be merged or consolidated with or into the US Borrower (provided that the US Borrower shall be the continuing or surviving corporation) or with or into any Subsidiary Guarantor (provided that the Subsidiary Guarantor shall be the continuing or surviving corporation) or, if at the time thereof subject to Section 8.8(f) and immediately after giving effect thereto no Default shall have occurred and be continuing8.8(g), with or into any Foreign Subsidiary;
(b) any (i) Subsidiary of the US Borrower may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the US Borrower or any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entityGuarantor or, subject to Sections 8.8(f) and 8.8(g), to any Foreign Subsidiary, (ii) Subsidiary of the BVI Borrower may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any other Subsidiary of the BVI Borrower and (iii) any Foreign Subsidiary (other than the BVI Borrower) may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any other Foreign Subsidiary;
(c) the US Borrower or the BVI Borrower may dispose of any or all of its assets to any Subsidiary of the US Borrower which is a Subsidiary Guarantor (or, in the case of the BVI Borrower, to the US Borrower);
(d) any Subsidiary of the BVI Borrower that is not a Subsidiary Guarantor of the US Borrower may merge be merged into the BVI Borrower or may dispose of any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose all of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.BVI Borrower;
(be) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the US Borrower and its Subsidiaries on may return inventory purchased from the date BVI Borrower to the BVI Borrower in exchange for a credit or refund of execution the purchase price and may assign and transfer accounts receivable to the BVI Borrower for a credit or for cash in connection with the compromise or collection thereof; and
(f) any Subsidiary of the BVI Borrower (other than the US Borrower) may dissolve concurrently with or subsequent to the Disposition of all its assets pursuant to this Agreement and businesses reasonably related Section 8.4(a), (b), (c) or complementary thereto(d).
Appears in 1 contract
Sources: First Lien Credit Agreement (FGX International Holdings LTD)
Fundamental Changes. (a) The Borrower No Loan Party will, nor will not, and will not 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 sell, transfer, lease or 85 otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, continuing (i) any Subsidiary of the Borrower may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor Loan Party in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entitya Loan Party, (iii) any Subsidiary Guarantor Person may merge or consolidate with or into any other Subsidiary GuarantorLoan Party or any of its Subsidiaries in connection with a Permitted Acquisition or any Investment permitted under Section 6.04 so long as, in the case of a merger involving any Loan Party, such Loan Party is the surviving entity (or the surviving entity becomes a Loan Party in accordance with this Agreement), (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (viiv) any Subsidiary that is not a Loan Party may merge or consolidate with or into any other Subsidiary Guarantor that is not a Loan Party and (vi) any Subsidiary may liquidate or dissolve if the Borrower reasonably determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and its Subsidiaries, and is not materially disadvantageous to the Lenders; provided, and (viii) that any such merger involving a Person may merge into the Borrower or any that is not a wholly owned Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower No Loan Party will, nor will not, and will not it permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably which are, in the good faith judgment of the Borrower, similar, complementary or substantially related or complementary theretoancillary thereto or are reasonable extensions thereof.
(c) The Borrower will not change its fiscal year which currently ends on December 31 of each year.
Appears in 1 contract
Fundamental Changes. (a) The Domestic Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Domestic Borrower in a transaction in which the Domestic Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not (other than a Subsidiary Guarantor Borrower) may merge into any Subsidiary Guarantor in a transaction in which the surviving entity is a Subsidiary Guarantor is (provided that the surviving entityDomestic Borrower's proportionate interest in the assets and business of the merged Subsidiary has not diminished), (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Domestic Borrower or to another Subsidiary Guarantor(provided that the Domestic Borrower's proportionate interest in the assets sold, transferred, leased, or disposed of has not diminished), and (viiv) any Subsidiary that is not (other than a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (viiBorrower) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Domestic Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Domestic Borrower and is not materially disadvantageous to the Lenders; 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. Notwithstanding the foregoing, foregoing clauses (ii) and (viiiiii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition of this subsection shall not apply where the Borrower or such Subsidiary is (A) the surviving entitySubsidiary would be a member of the Delta Group (unless only involving members of the Delta Group), or (B) the recipient of sold, leased, transferred or otherwise disposed of assets would be a member of the Delta Group (unless the transferor was a member of the Delta Group).
(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 (A) permitted under Section 6.02(e) or (B) made by a member of the Delta Group;
(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) [intentionally omitted]; 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 sales, conveyances and other 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 (other than any member of the Delta Group) 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 of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Domestic Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretothereto except to an extent not material to the Domestic Borrower and its Subsidiaries taken as a whole.
(d) The preceding paragraphs of this Section 6.03 shall not limit the Securitization Transactions.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itthe Borrower, consummate a Division as the Dividing Person, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets), or all or substantially all of the stock of any of its Subsidiaries (in each caseBorrower’s assets, whether now owned or hereafter acquiredacquired (including stock of its Subsidiaries), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary Person may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary the Borrower may consummate a Division as the Dividing Person if either (A) such Division does not result in a transfer of the Borrower’s obligations hereunder, and after giving effect thereto, the Borrower owns all or substantially all assets owned by the Borrower immediately prior to 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 not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which of an Investment Grade Rating equal to or higher than the Subsidiary Guarantor is Borrower’s rating and the surviving entityResulting Borrower assumes, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets pursuant to the Borrower or to another Subsidiary Guarantorterms of such transaction, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose all of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests obligations of the Borrower under the Loan Documents and such assumption is not materially disadvantageous evidenced by an agreement executed and delivered to the Lenders, Lenders within 30 days of such transaction in a form reasonably satisfactory to the Required Lenders and (viii2) after giving effect to such Division, the Resulting Borrower owns all or substantially all assets owned by the Borrower immediately prior to such Division and (iii) any Person may merge into with the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is as long as the surviving entity, if other than the Borrower, is of an Investment Grade Rating equal to or higher than the Borrower’s rating and so long as the surviving entity assumes, pursuant to the terms of such transaction, each of the obligations of the Borrower under the 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 Required 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 purposes of this Section 6.03(a), a transfer of all or substantially all of the assets of the Borrower.
(b) The Borrower will not, and will not permit any of its Material Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement Revolving Effective Date and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower No Consolidated Entity will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Wholly-Owned Subsidiary Guarantor in a transaction in which the surviving entity is a Wholly-Owned Subsidiary Guarantor and, if any party to such merger is the surviving entitya Loan Party, is or becomes a Loan Party, (iii) any Subsidiary Guarantor may merge into any (other Subsidiary Guarantor, (ivthan a Loan Party) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 Borrower, is not materially disadvantageous to the LendersLenders and could not reasonably be expected to have a Material Adverse Effect, (iv) any Foreign Subsidiary may 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 China, ▇▇▇▇▇▇▇ River Mexico and ▇▇▇▇▇▇▇ River Proteomics may be sold, liquidated or dissolved and may take any action described in clauses (h) or (i) of Article VII so long as the Borrower receives its ratable portion of the net proceeds available to the equity holders in connection with such liquidation or dissolution, (vi) any Wholly-Owned Subsidiary may merge into any Person in order to consummate a Permitted Acquisition permitted by Section 6.04(g) so long as after giving effect thereto the Person surviving such merger is a Subsidiary, (vii) any Consolidated Entity may effect the closure of a division in such Consolidated Entity, and (viii) any Person the Consolidated Entities may merge into effect the Borrower or any Subsidiary in connection with an Acquisition where mergers necessary to consummate the Borrower or such Subsidiary is the surviving entityAcquisition.
(b) The Borrower No Consolidated Entity will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries Consolidated Entities on the date of execution of this Agreement (after giving effect to the Acquisition) and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Credit Agreement (Charles River Laboratories International Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary to, merge Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, continuing (i) any Subsidiary of any Borrower may merge into the such Borrower in a transaction in which the such Borrower is the surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary of Holdings (provided that (A) if Kmart Corp. is not a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any Subsidiary Guarantor is a party to such merger (other than with a Borrower or Holdings), such Subsidiary Guarantor shall be the continuing or surviving entity or the continuing or surviving entity shall become a Subsidiary Guarantor may merge into any Subsidiary Guarantor in and (C) if SRAC is a transaction in which party to such merger, then Sears shall comply with the Subsidiary Guarantor is the surviving entityrequirements of Section 6.01(d)), (iii) any Subsidiary Guarantor may merge into any of Holdings other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor than the Borrowers may sell, transfer, lease or otherwise dispose of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (provided that if such sale or transfer includes Collateral and the transferee is not the Borrower or to another Holdings, the transferee shall be a Subsidiary Guarantor), (viiv) any Subsidiary that is not a Subsidiary Guarantor of Holdings other than the Borrowers or Sears may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary a Person that is not a Subsidiary or merge with a Person that is not a Subsidiary, in each case pursuant to a Permitted Disposition, (v) any Subsidiary of Holdings other than the Borrowers, Sears or any Material Subsidiary Guarantor (except, in the case of SRAC, as provided in Section 6.01(d)) may liquidate or dissolve if Holdings and the Borrower determines Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrower Borrowers, Sears, the other Material Subsidiary Guarantors and their Subsidiaries and is not materially disadvantageous in any material respect to Holdings, the Borrowers, Sears, the other Material Subsidiary Guarantors or the Lenders; provided, that a Material Subsidiary Guarantor may liquidate or dissolve into a Person that is a Subsidiary of Holdings immediately prior to such liquidation or dissolution, if the continuing or surviving entity is or shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii), and (viiivi) any Person may merge into the Borrower Holdings or any Subsidiary of Holdings may merge with a Person that is not a Subsidiary of Holdings immediately prior to such merger if, in connection with an Acquisition where the case of any merger involving Holdings, a Borrower or a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as applicable, is the continuing or surviving entity.
entity or, in the case of any merger involving a Subsidiary Guarantor, the continuing or surviving entity shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii) and (vii) any Credit Card Royalty Securitization Subsidiary may sell or otherwise finance or Dispose of the assets subject to the Credit Card Royalty Securitization; provided that contemporaneously with (x) the occurrence of any of the actions permitted to be taken pursuant to the foregoing clauses (i) through (vi) of this clause (b) The Borrower will notor (y) the consummation of a Credit Card Royalty Securitization, and will not permit any of its Subsidiaries to, engage the Borrowers shall furnish to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoCollateral Agent an updated Borrowing Base Certificate.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Material Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of its assets, or all or substantially all of the stock of any of its Material Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the surviving entity is a Subsidiary Guarantor so long as, in the event that either such Subsidiary is a Guarantor, the surviving entityentity is a Guarantor or becomes a Guarantor concurrently with such merger, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary so long as, in the event that the Subsidiary selling, transferring, leasing or otherwise disposing such assets is a Guarantor, the entity to which it sells, transfers, leases or otherwise disposes of its assets is the Borrower or a Guarantor or becomes a Guarantor concurrently with such asset sale, (viiv) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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, Lenders and (viiiv) any Person Subsidiary may merge into the Borrower or consolidate with any Subsidiary Person in connection with an a Permitted Acquisition where so long as, in the Borrower or event that such Subsidiary is a Guarantor, the surviving entityentity is a Guarantor or becomes a Guarantor concurrently with such merger or consolidation; 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.
(ba) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related related, ancillary or complementary theretothereto (including related, complementary, synergistic or ancillary technologies in which the Borrower and its Subsidiaries are currently engaged).
Appears in 1 contract
Sources: Credit Agreement (Masimo Corp)
Fundamental Changes. (a) The Neither Parent nor the Borrower will, nor will not, and will not they 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary (other than a License Subsidiary) may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not Person (other than a Subsidiary Guarantor License Subsidiary) may merge with or into or consolidate with any Subsidiary Guarantor (other than a License Subsidiary) in a transaction in which the surviving entity is a Subsidiary Guarantor and (if any party to such merger is a Subsidiary Loan Party) the surviving entityentity is a Subsidiary Loan Party, (iii) any Subsidiary Guarantor may merge into or consolidate with any other Subsidiary GuarantorPerson 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 that is not (other than a License Subsidiary Guarantor may merge into any or other Subsidiary that is not a Subsidiary Guarantor, (vLoan Party) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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, (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 (viiiy) any Person may merge into the Borrower or any Subsidiary determines in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.good faith that
(b) The Borrower will not, and will not permit any of its the Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its the Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
(c) Parent will not engage in any business or activity other than the ownership of all the outstanding shares of capital stock of the Borrower, the issuance of the Parent Discount Debentures and activities incidental thereto, including rental payments, computer services, professional and consultant services, investment services, printing, travel and other miscellaneous services. Parent will not own or acquire any assets (other than shares of capital stock of the Borrower, cash and Permitted Investments) or incur any liabilities (other than liabilities under the Loan Documents, liabilities imposed by law, including tax liabilities, liabilities under the Parent 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.
(e) No License Subsidiary will sell, transfer, lease or otherwise dispose of any Operating License or any Authorization.
(f) ACS Media Holdings will not engage in any business or activity other than (i) the ownership and disposition of Equity Interests in ACS Media LLC, (ii) the exercise by ACS Media Holdings of its right, if it decides in its sole discretion to do so, to exchange Equity Interests in ACS Media LLC for trust units of ACS Media Income Fund pursuant to clause (h) of the definition of the term ACS Media Transaction and the subsequent ownership and disposition of such units, (iii) the issuance of and payment with respect to the 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 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 units and cash or other consideration obtained pursuant to clause (e) or (f) of the definition of the term "ACS Media Transaction" and any ACS Media Disposition) or 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), PROVIDED that ACS Media Holdings shall promptly distribute to the Borrower or any Subsidiary Loan Party any assets obtained pursuant to clauses (e) and (f) of the definition of the term "ACS Media Transaction", any ACS Media Disposition and any distribution with respect to Equity Interests in ACS Media LLC or trust units of ACS Media Income Fund.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary toSubsidiary, merge into to merge, consolidate or consolidate with any other Personamalgamate, or permit liquidate, wind up or dissolve itself (or suffer any other Person to merge into liquidation or consolidate with itdissolution), or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its assetsSubsidiaries, taken as a whole, or all or substantially all of the stock Capital Stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolvethe Subsidiaries, except that:
(a) any Subsidiary of the Borrower or any Person may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any Subsidiary (provided that the continuing or surviving corporation shall be a Subsidiary);
(b) any Subsidiary of the Borrower may Dispose of any or all of its assets to the Borrower or any Subsidiary (upon voluntary liquidation or otherwise);
(c) the Borrower or a Subsidiary of the Borrower may merge with another Person; provided (i) the Borrower or such Subsidiary (subject to clause (ii)), if at as the time thereof case may be, shall be the continuing or surviving corporation of such merger, or (ii) in the case of a Wholly-Owned Subsidiary of the Borrower which is merged into another Person which is the continuing or surviving Person of such merger, the Borrower shall cause such continuing or surviving corporation to be a Wholly-Owned Subsidiary of the Borrower; provided in the case of (i) and (ii) above, immediately before and after giving effect thereto to such merger no Default or Event of Default shall have occurred and be continuing;
(d) provided that no Default or Event of Default shall have occurred and be continuing, (i) any Subsidiary may be dissolved, wound-up or liquidated or any Subsidiary may merge into or consolidate with any other Person and all or substantially all of the Capital Stock or assets of any Subsidiary may be Disposed of, in each case, if such dissolution, winding up, liquidation or Disposition does not constitute a Disposition of all of the assets of the Borrower in and its Subsidiaries, taken as a transaction in which the Borrower is the surviving entitywhole, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve and if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and Borrower, is not materially disadvantageous to the Lenders, Lenders and would not be likely to have a Material Adverse Effect; and
(viiie) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where may consummate the Borrower or such Subsidiary is the surviving entityAcquisition.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Term Loan Facility (Synopsys Inc)
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of its assets, or all or substantially all of the stock Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, :
(i) the Borrower and its Subsidiaries may enter into and consummate Permitted Acquisitions;
(ii) any Subsidiary Person may merge into the Borrower in a transaction in which the Borrower is the surviving entity, corporation;
(iiiii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary or the Borrower (provided that any such merger involving the Borrower must result in the Borrower as the surviving entity and any such merger involving a Subsidiary Guarantor must result in a transaction in which the Subsidiary Guarantor is as the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, );
(iv) the Borrower or any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another any other Subsidiary Guarantor(provided that the aggregate amount permitted to be sold, transferred, leased or disposed hereunder by a Loan Party to a Foreign Subsidiary, when aggregated with the amount of Indebtedness of any Loan Party to any Foreign Subsidiary permitted under Section 6.01(c), shall not exceed $50,000,000 at any time outstanding);
(v) the Borrower or any Subsidiary may sell Receivables under Permitted Receivables Facilities (subject to the limitation that the Attributable Receivables Indebtedness thereunder shall not exceed an aggregate amount of $100,000,000);
(vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 ;
(viiivii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where may grant Liens permitted by Section 6.02; and
(viii) the Borrower or such any Subsidiary is may sell, transfer, lease or otherwise dispose of its assets so long as the surviving entityassets sold or disposed in any fiscal year do not exceed, in the aggregate, 10% of Consolidated Tangible Assets (determined as of the end of the preceding fiscal year of the Borrower).
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related related, complementary or complementary incidental thereto.
Appears in 1 contract
Sources: Credit Agreement (Bea Systems Inc)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Subsidiary of its Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all 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, except that, that (x) the Borrower or any Subsidiary may enter into transactions permitted by Section 7.05 and (y) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, :
(a) any Subsidiary of the Borrower may be merged or consolidated with or into:
(i) the Borrower if the Borrower shall be the continuing or surviving corporation, (ii) any Wholly-Owned Subsidiary of the Borrower that is not a Foreign Subsidiary or (iii) if such Subsidiary is a Foreign Subsidiary, any Wholly-Owned Subsidiary of the Borrower that is a Foreign Subsidiary; provided that in any such transaction, the Wholly-Owned Subsidiary shall be the continuing or surviving corporation;
(b) the Borrower or any such Subsidiary may convey, sell, lease, transfer or otherwise dispose of any or all of its Property (upon voluntary liquidation or otherwise) either (A) in compliance with the provisions of Section 7.04(i), (ii) or (iv) or (B) in the case of any such Subsidiary, to (i) the Borrower, (ii) any Wholly-Owned Subsidiary of the Borrower that is not a Foreign Subsidiary or (iii) if such Subsidiary is a Foreign Subsidiary, any Wholly-Owned Subsidiary of the Borrower that is a Foreign Subsidiary;
(c) the Borrower or any Subsidiary of the Borrower may merge into or consolidate with any other Person if, in the Borrower in case of a transaction in which merger or consolidation of the Borrower, the Borrower is the surviving entitycorporation, (ii) and, in any other case, the surviving corporation is a Wholly-Owned Subsidiary of the Borrower that is not a Foreign Subsidiary Guarantor may or, if such merging or consolidating Subsidiary is a Foreign Subsidiary, any Wholly-Owned Subsidiary of the Borrower that is a Foreign Subsidiary; and
(d) the Borrower may, for the purpose of transferring its jurisdiction of incorporation from Delaware to another state of incorporation, merge with and into any a Wholly-Owned Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iiiconstituting a tax-free reorganization under 368(a)(1)(F) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 LendersCode, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.so long as:
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Consolidated Subsidiary to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Consolidated Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided, except thatthat this Section 6.3 shall not prohibit the consummation of the Merger and the Transactions, and if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing, continuing (i) the Borrower or any Consolidated Subsidiary may merge into with a Person if the Borrower in a transaction in which (or such Consolidated Subsidiary if the Borrower is not a party to such merger) is the surviving entityPerson, (ii) any Consolidated Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entityanother Consolidated Subsidiary, (iii) any Consolidated Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another a Consolidated Subsidiary, (viiiv) any Consolidated Subsidiary that is not a Subsidiary Guarantor 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, Lenders and (viiiv) any Consolidated Subsidiary may be sold so long as such sale is permitted under Section 6.6; 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 6.4; provided, further, that at any time, (x) any one or more Permitted Securitization Subsidiaries may merge into the Borrower or consolidate with any one or more Permitted Securitization Subsidiaries and (y) any Permitted Securitization Subsidiary in connection with an Acquisition where the Borrower may be liquidated or such Subsidiary is the surviving entitydissolved.
(b) The Borrower will not, and will not permit any of its Consolidated Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Consolidated Subsidiaries on the date of execution of this Agreement hereof and businesses reasonably related or complementary theretothereto and to consummate a Permitted Securitization Transaction.
Appears in 1 contract
Sources: Term Loan Agreement (Fidelity National Information Services, Inc.)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Subsidiary of its Restricted Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries Borrowing Base Properties or any of the Equity Interests of any Restricted Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, the Borrower or any Restricted Subsidiary may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business, and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, :
(i) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, ;
(ii) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into any other Restricted Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entity, a Restricted Subsidiary;
(iii) any Restricted Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, Restricted Subsidiary;
(viiv) any Subsidiary that is not a Subsidiary Guarantor the Borrower may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another any Restricted Subsidiary, ;
(viiv) any Restricted Subsidiary that is not a Subsidiary Guarantor 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 such Restricted Subsidiary and is not materially disadvantageous to the Lenders, and ;
(viiivi) any Person may merge into the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of equipment and related items in connection with an Acquisition where the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility;
(vii) subject to Section 2.12(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties (whether pursuant to a sale, transfer, lease, exchange or other disposition of all, but not less than all, of the Equity Interests of any Restricted Subsidiary or otherwise); provided that the Engineered Value (as assigned by the Administrative Agent) of all Borrowing Base Properties sold, transferred, leased, exchanged, abandoned or otherwise disposed of (calculated without including any Required JV Assignments) between Scheduled Redeterminations does not exceed, in the aggregate for all Credit Parties taken as a whole, five percent (5%) of the Borrowing Base most recently determined;
(viii) with the prior written consent of Required Lenders and subject to Section 2.02(d) and Section 2.12(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties (whether pursuant to a sale, transfer, lease, exchange or other disposition of Equity Interests of a Restricted Subsidiary or otherwise) not otherwise permitted pursuant to the foregoing clause (vii); provided, that the Credit Parties may not sell, transfer, lease, exchange, abandon or otherwise dispose of (in one transaction or a series of related transactions) all or substantially all of the Borrowing Base Properties (whether pursuant to a sale, transfer, lease, exchange or other disposition of Equity Interests of a Restricted Subsidiary or otherwise) without the prior written consent of all of the Lenders;
(ix) EOC or any Restricted Subsidiary may sell, transfer or assign to BG Production (a) an undivided 50% interest in Oil and Gas Interests acquired by EOC or any other Credit Party in the East Texas/North Louisiana Area and (b) 50% of the Equity Interests of any Unrestricted Subsidiary owning Oil and Gas Interests acquired by such Unrestricted Subsidiary is in the surviving entityEast Texas/North Louisiana Area, in each case, to the extent required pursuant to and in accordance with the terms and conditions of the BG Joint Development Agreement (each, a “Required ET/NL Assignment”);
(x) so long as each of the ▇▇▇▇▇▇▇▇▇ ▇▇ Conditions are satisfied, EXCO PA and EXCO WV may transfer, pursuant to a multi-successor merger pursuant to Section 10.01 et seq of the Texas Business Organizations Code, (a) an undivided 49.75% interest in the ▇▇▇▇▇▇▇▇▇ ▇▇ Oil and Gas Assets to the Marcellus Holding Companies, (b) an undivided 0.5% interest in the ▇▇▇▇▇▇▇▇▇ ▇▇ Oil and Gas Assets to the ▇▇▇▇▇▇▇▇▇ ▇▇ Operator, and (c) 100% interest in the Marcellus Midstream Assets to the Marcellus Midstream Owner or one or more of its Subsidiaries;
(xi) so long as each of the ▇▇▇▇▇▇▇▇▇ ▇▇ Conditions are satisfied, the Borrower or one of more of its Restricted Subsidiaries may transfer to (a) the ▇▇▇▇▇▇▇▇▇ ▇▇ Partner (i) 100% of the Equity Interests of the Marcellus Holding Companies and (ii) 50% of the Equity Interests of the ▇▇▇▇▇▇▇▇▇ ▇▇ Operator and the Marcellus Midstream Owner, and (b) the Marcellus Midstream Owner 100% of the Equity Interests of Black Bear Gathering; and
(xii) following the consummation of the Marcellus Joint Venture and the satisfaction of each of the ▇▇▇▇▇▇▇▇▇ ▇▇ Conditions, EXCO PA, EXCO WV or any other Credit Party may sell, transfer or assign to (A) the Marcellus Holding Companies an undivided 49.75% interest and (B) the ▇▇▇▇▇▇▇▇▇ ▇▇ Operator an undivided 0.5% interest, in the case of each of clauses (A) and (B) above, in Oil and Gas Interests acquired thereafter by EXCO PA, EXCO WV or any other Credit Party in the Appalachian Area to the extent required pursuant to and in accordance with the terms and conditions of the ▇▇▇▇▇▇▇▇▇ ▇▇ Documents (such assignments, together with the transfers described in clauses (x) and (xi) above, the “Required Marcellus Assignments”).
(b) For purposes of determining compliance with clause (vii) of Section 7.03(a) with respect to any exchange of Oil and Gas Interests, the value of such exchange shall be the net reduction, if any, in Engineered Value realized or resulting from such exchange.
(c) The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and after giving effect to the Transactions and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Significant Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all the assets of the stock of any of Borrower and its Subsidiaries taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary or other Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into or consolidate with any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entitya Wholly Owned Subsidiary, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantora Wholly Owned Subsidiary, (viiv) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 (viiiv) any Person Subsidiary may merge into or consolidate with any other Person if the surviving Person is or becomes by virtue of such transaction a Wholly Owned Subsidiary, and the Borrower determines in good faith that such merger or consolidation is in the best interests of the Borrower and would not materially adversely affect the Lenders, (vi) the Borrower or any Subsidiary in connection may merge into or consolidate with an Acquisition where any other Person; provided that the Borrower or such Subsidiary is the surviving entity.
corporation, (bvii) The Borrower will not, and will any Subsidiary may merge with any other Person in a transaction in which the surviving entity is not permit any a Subsidiary; provided that such transaction does not constitute the disposition of its Subsidiaries to, engage to any material extent in any business other than businesses all or substantially all assets of the type conducted by the Borrower and its Subsidiaries on subsidiaries taken as a whole, and (viii) the date of execution of this Agreement and businesses reasonably related or complementary theretoBorrower may consummate the Separation Transactions.
Appears in 1 contract
Sources: Credit Agreement (Hp Inc)
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any of its assets, or all or substantially all any of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default (in the case of clauses (i) through (vi)) shall have occurred and be continuingcontinuing (i) the Borrower or any Guarantor may undertake a Permitted Acquisition, (iii) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (iiiii) any Subsidiary that is not a Subsidiary Guarantor of the Borrower may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary a Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (viv) the Borrower or any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to any Person in an arms-length transaction, provided the Borrower or to another Subsidiarynet proceeds of all such sales, transfers, leases and dispositions does not exceed $5,000,000 in the aggregate during the Availability Period, (viivi) any Subsidiary that is not a Subsidiary Guarantor 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 of the Borrower immediately prior to such merger shall not be permitted unless also permitted by Section 6.04, and (viiivii) any Person may merge into the Borrower or any Subsidiary and its Subsidiaries may sell inventory in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entityordinary course of business.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Credit Agreement (National Medical Health Card Systems Inc)
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entitya Subsidiary, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose Dispose of its assets to the Borrower or to another Subsidiary, (viiiv) any Subsidiary that is not a Subsidiary Guarantor 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 (viiiv) any the Borrower may merge into another Person or another person may merge into the Borrower if (x) the Borrower is the surviving Person and (y) the Borrower (1) could incur at least $1.00 of additional Indebtedness pursuant to Section 6.01(i) or any Subsidiary in connection (2) has a Debt-to-Equity Ratio equal to or lower than the Debt-to-Equity Ratio of the Borrower immediately prior to such transaction or (3) has a Fixed Charge Coverage Ratio no less than the Fixed Charge Coverage Ratio of the Borrower immediately prior to such transaction; provided the Borrower shall not be required to comply with this subclause (y) if the surviving Person has an Acquisition where investment grade rating and (vi) the Borrower may merge or consolidate with a newly formed or incorporated Affiliate of the Borrower formed or incorporated solely for the purpose of changing the form of organization of the Borrower or reincorporating or reorganizing the Borrower in another state of the United States or may convert into a corporation, partnership or limited liability company, so long as the amount of Indebtedness of the Borrower is not increased thereby and there are no material adverse tax consequences from such Subsidiary is conversion as reasonably determined by the surviving entity.
(bBorrower. For the avoidance of doubt, this Section 6.03(a) The Borrower will not, and will shall not permit any of its Subsidiaries to, engage apply to any material extent in sale, assignment, transfer, conveyance or other disposition of Securitization Assets pursuant to a Securitization and any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoFinanceable Assets.
Appears in 1 contract
Sources: Revolving Credit Agreement (Rocket Companies, Inc.)
Fundamental Changes. (a) The Parent Borrower will not, and will not permit any Material Subsidiary to, merge into or amalgamate or consolidate with any other Person, or permit any other Person to merge into or amalgamate or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all of its assets, or all or substantially all of the stock Capital Stock of any of its the Material Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate liquidate, wind up or dissolve, except that, (i) if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing, (i) any Subsidiary Person may amalgamate, consolidate or merge with or into the any Borrower in a transaction in which the so long as, if applicable, such Borrower is the surviving entitycorporation, or amalgamate, consolidate or merge with or into any other Subsidiary so long as, if applicable, the surviving entity is a Subsidiary, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the any Borrower or to another Subsidiary Guarantorany other Subsidiary, or amalgamate, consolidate or merge with or into, any Borrower or any other Subsidiary, (viiii) any Subsidiary that is not a Subsidiary Guarantor may sellliquidate, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate wind up or dissolve if the Parent Borrower determines in good faith that such liquidation liquidation, winding up or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders, Lenders and (viiiiv) in addition to the transactions permitted pursuant to clauses (i) through (iii) above, the Parent Borrower and any Material Subsidiary of the Parent Borrower may merge, amalgamate or consolidate with, or sell or otherwise dispose of any assets to, a Person may merge into (other than the Parent Borrower or a Subsidiary) if, after giving effect to any Subsidiary such merger, amalgamation, consolidation, sale or disposition, the book value (determined at the time of such merger, amalgamation, consolidation, sale or disposition) of the subject assets, together with the aggregate book value of all other assets subject to any transaction under this clause (iv) since March 31, 2012, does not exceed 20% of the Consolidated Assets of the Parent Borrower as of March 31, 2012; provided that, in connection the case of each of clauses (i) through (iv) above, (x) if any such merger, amalgamation, consolidation, sale or other disposition involves any Borrower, the continuing entity resulting from such combination, if such continuing entity is not such Borrower, shall execute and deliver an assumption agreement with an Acquisition where respect to the Obligations of such Borrower together with supporting documentation and legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent and (y) prior to the effectiveness of such merger, amalgamation, consolidation, sale or disposition, each Lender shall have received such Subsidiary is other documentation and/or certificates that it may reasonably request (including, without limitation, documentation required in order to comply with any applicable “know your client” or AML Legislation). Notwithstanding the surviving entityforegoing, the Parent Borrower and its Domestic Subsidiaries shall not be permitted to transfer or otherwise dispose of, including through any merger, amalgamation or consolidation, any substantial portion of the assets or operations of itself and such Domestic Subsidiaries taken as a whole to the Canadian Borrower and its Subsidiaries or to any Additional Borrower and its Subsidiaries.
(b) The Parent Borrower will not, and will not permit any of its the Material Subsidiaries to, engage to any material extent in any business other than (A) the businesses substantially of the type conducted engaged in by the Parent Borrower and its Subsidiaries on the date of execution of this Agreement hereof, and businesses (B) any business or activities reasonably related thereto (which shall include, without limitation, any business engaged in using or complementary theretoprocessing or selling wood fiber or products derived from wood fiber).
Appears in 1 contract
Sources: Credit Agreement (Domtar CORP)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Subsidiary of its subsidiaries to, liquidate or dissolve itself (or suffer any liquidation or dissolution) or otherwise wind up, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itcorporation, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any part of its assets, or all or substantially all assets (other than in the ordinary course of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquiredbusiness), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing, then exists or would result therefrom:
(i) Subsidiaries which are not Material Subsidiaries may be liquidated or dissolved and their affairs wound up;
(ii) the Borrower or any Subsidiary may merge, consolidate or amalgamate with any other Person; provided, that the Borrower or such Subsidiary, as the case may be, is the surviving, continuing or resulting Person in such merger, consolidation or amalgamation and, in the case of a Subsidiary, continues to be a Subsidiary;
(iii) any Subsidiary (other than AICI) may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, or another Subsidiary;
(iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets (whether now owned or hereafter acquired and including shares of capital stock, receivables and leasehold interests) to the Borrower or to another Subsidiary;
(v) the Borrower may sell, lease or otherwise dispose of less than all of its assets (viiwhether now owned or hereafter acquired and including shares of capital stock, receivables and leasehold interests) to any Person, and any Subsidiary that is not may sell, lease or otherwise dispose of all or any part of its assets to a Subsidiary Guarantor may liquidate or dissolve if Person other than the Borrower determines or another Subsidiary (whether in connection with a merger, consolidation or amalgamation of such Subsidiary into a Person other than the Borrower or another Subsidiary or otherwise), in each case, for a consideration which represents the fair market value of such assets (as determined in good faith that such liquidation or dissolution is in the best interests by an Authorized Officer of the Borrower and is not materially disadvantageous to the Lenders, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary Subsidiary) at the time of such sale, lease or other disposition; provided, that immediately after such sale, lease or other disposition and after giving effect thereto, the aggregate market value of all assets so sold, leased or otherwise disposed of by AI and the Subsidiaries during any Fiscal Year does not exceed 10% of the consolidated assets of the Parent and its subsidiaries as shown in the consolidated financial statements of the Parent and the Subsidiaries as at the end of the Fiscal Year next preceding the date on which such determination is made; and
(vi) the surviving entityconsummation of the Acquisition shall be permitted to occur.
(b) The Borrower will shall not, and will not nor shall it permit any of its Subsidiaries subsidiaries to, engage to at any material extent time, acquire any assets of or interests in any business other than businesses substantially Person, provided that (x) the consummation of the type conducted by Acquisition shall be permitted to occur and (y) the Borrower and its Subsidiaries on may acquire all or substantially all of the date assets of execution or a majority of this Agreement and businesses reasonably related the voting Capital Stock in any other Person or complementary theretoPersons (any such acquisition, a "Control Purchase") for a total consideration not to exceed $600,000,000.
Appears in 1 contract
Sources: Credit Agreement (Anthem Inc)
Fundamental Changes. (a) The Borrower will shall not, and will not nor shall it permit any Subsidiary of its Material Subsidiaries to, merge enter into any transaction of merger or consolidate with any other Personconsolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution).
(b) The Borrower shall not, nor shall it permit any other Person to merge into of its Material Subsidiaries to, acquire any business or consolidate with itproperty from, or capital stock of, or be a party to any acquisition of, any Person except for purchases of inventory and other property to be sold or used in the ordinary course of business, Assumed Reinsurance in the ordinary course of business, Investments permitted under Section 6.04, and capital expenditures in the ordinary course of business.
(c) the Borrower shall not, nor shall it permit any of its Material Subsidiaries to, convey, sell, transferlease, lease transfer or otherwise dispose of (of, in one transaction or in a series of transactions) , all or substantially all a substantial part of its assets, business or all or substantially all of the stock of any of its Subsidiaries (in each caseProperty, whether now owned or hereafter acquired).
(d) Neither the Borrower nor any Subsidiary will engage in any business if, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred to such business, less than one-half of the Borrower’s Consolidated revenues, determined in accordance with GAAP, would be derived from the providing of insurance (including insurance agency) and be continuing, other financial services. Notwithstanding the foregoing provisions of this Section 6.03:
(i) any Subsidiary may merge into of the Borrower in a transaction in which may be merged or consolidated with or into: (A) the Borrower is if the Borrower shall be the continuing or surviving entitycorporation or (B) any other such Subsidiary; provided that if any such transaction shall be between a Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned Subsidiary shall be the continuing or surviving corporation;
(ii) any Material Subsidiary that is not of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its property (upon voluntary liquidation or otherwise) to the Borrower or a Wholly Owned Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which of the Subsidiary Guarantor is the surviving entity, Borrower;
(iii) any Material Subsidiary Guarantor of the Borrower may merge into or consolidate with or acquire any other Person if, in the case of a merger or consolidation, the surviving corporation is a Wholly Owned Subsidiary Guarantor, of the Borrower; and
(iv) any Subsidiary that the Borrower may merge with another Person, but only so long (A) as the surviving corporation is not the Borrower, (B) after giving effect thereto, no Default would exist hereunder, (C) the business activity engaged in by such other Person would be permitted under Section 6.03(d) hereof if such other Person were a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 prior to the Lenders, such merger or consolidation and (viiiD) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially aggregate amount of the type conducted by the Borrower and its Subsidiaries on Statutory Surplus (determined as at the date of execution the relevant merger, consolidation or acquisition) of all such other Persons that have been the subject of any merger, consolidation or acquisition pursuant to this Agreement and businesses reasonably related clause (iv) during any calendar year (other than any such merger, consolidation or complementary theretoacquisition financed solely with Net Available Proceeds) shall be less than $25,000,000.
Appears in 1 contract
Sources: Credit Agreement (American Equity Investment Life Holding Co)
Fundamental Changes. (a) The Each Borrower will not, not and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all or substantially all of its assetsassets (other than Unrestricted Margin Stock), or all or substantially all of the stock Equity Interests (other than Unrestricted Margin Stock) of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Person (other than the TopCo Borrower or any of its Restricted Subsidiaries) may merge or consolidate with the TopCo Borrower or any of its Restricted Subsidiaries; provided that any such merger or consolidation involving (A) the TopCo Borrower must result in the TopCo Borrower as the surviving entity, (iB) the U.S. Borrower must result in the U.S. Borrower as the surviving entity, (C) the U.S. Co-Borrower must result in the U.S. Co-Borrower as the surviving entity and (D) a Subsidiary Guarantor must result in such Subsidiary Guarantor as the surviving entity;
(ii) any Subsidiary may merge into the Borrower or consolidate with a Loan Party in a transaction in which the surviving entity is a Loan Party (provided that any such merger involving the TopCo Borrower is must result in the TopCo Borrower as the surviving entity, any such merger involving the U.S. Borrower must result in the U.S. Borrower as the surviving entity, any such merger involving the U.S. Co-Borrower must result in the U.S. Co-Borrower as the surviving entity and any such merger involving a Subsidiary (iiother than the U.S. Borrower) and a Subsidiary Guarantor must result in a Subsidiary Guarantor as the surviving entity);
(iii) any Subsidiary that is not a Subsidiary Guarantor Loan Party may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any or consolidate with another Subsidiary that is not a Loan Party (provided that any such merger involving a Restricted Subsidiary Guarantor may merge into any other must result in a Restricted Subsidiary that is not a Subsidiary Guarantor, as the surviving entity);
(viv) any Subsidiary Guarantor the TopCo Borrower and its Restricted Subsidiaries may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Loan Party (and, in connection with a liquidation, winding up or dissolution or otherwise, any Restricted Subsidiary Guarantor that is not a Loan Party may sell, transfer, lease lease, license or otherwise dispose of any, all or substantially all of its assets to the Borrower or assets) to another Subsidiary, (vii) any Restricted Subsidiary that is not a Loan Party;
(v) Dispositions permitted by Section 6.04;
(vi) any Restricted Subsidiary Guarantor that is not a Loan Party may liquidate liquidate, wind up or dissolve if the U.S. Borrower determines in good faith that such liquidation liquidation, winding up or dissolution is in the best interests of the Borrower Borrowers and is not materially disadvantageous to the Lenders;
(vii) any Domestic Subsidiary (other than the U.S. Borrower and the U.S. Co-Borrower) may liquidate, and wind up or dissolve if its assets are transferred to a Loan Party or, if such Domestic Subsidiary is not a Subsidiary Guarantor, to any other Domestic Subsidiary; and
(viii) any Person Irish Subsidiary may merge into the Borrower liquidate, wind up or any Subsidiary in connection with an Acquisition where the Borrower or dissolve if its assets are transferred to a Loan Party or, if such Irish Subsidiary is the surviving entitynot a Subsidiary Guarantor, to any other Irish Subsidiary or to any Domestic Subsidiary;
(ix) any Foreign Subsidiary (other than an Irish Subsidiary) may liquidate, wind up or dissolve if its assets are transferred to a Loan Party or, if such Foreign Subsidiary is not a Subsidiary Guarantor, to any other Restricted Subsidiary; 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 6.05.
(b) The Each Borrower will not, not and will not permit any of its Subsidiaries Restricted Subsidiary to, engage to any material extent in any business other than substantially different from businesses substantially of the type conducted by the TopCo Borrower and its Restricted Subsidiaries (taken as a whole) on the date of execution of this Agreement Closing Date and businesses reasonably related related, ancillary, similar, complementary or complementary theretosynergistic thereto or reasonable extensions, development or expansion thereof.
(c) Each Borrower will not and will not permit any Restricted Subsidiary to, change its fiscal year from the basis in effect on the Closing Date; provided that, notwithstanding the foregoing, each Borrower may (and may permit the Restricted Subsidiaries to) change their fiscal year so long as a Borrower notifies the Administrative Agent no less than 30 days prior to such change (or such shorter period as may be acceptable to the Administrative Agent in its sole discretion) and upon receipt of such notice, the Borrowers and the Administrative Agent will (and are hereby authorized to) make any adjustments to this Agreement that are necessary and appropriate to reflect such changes in fiscal year.
Appears in 1 contract
Sources: Credit Agreement (Alkermes Plc.)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Subsidiary of its Restricted Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries Borrowing Base Properties or any of the Equity Interests of any Restricted Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, the Borrower or any Restricted Subsidiary may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business, and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into any other Restricted Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entitya Restricted Subsidiary, (iii) any Restricted Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Restricted Subsidiary, (viiiv) any Restricted Subsidiary that is not a Subsidiary Guarantor 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 (viiiv) any Person may merge into the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of equipment and related items in connection with an Acquisition where the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility, (vi) subject to Section 2.10(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties with a value not exceeding, in the aggregate for the Borrower and its Restricted Subsidiaries taken as a whole, 5% of the Borrowing Base between Scheduled Redeterminations and (vii) with the prior written consent of Required Lenders and subject to Section 2.10(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties not otherwise permitted pursuant to the foregoing clause (vi). For purposes of the foregoing clause (vi), the value of any Oil and Gas Interests included in the Borrowing Base Properties shall be the Engineered Value of such Subsidiary is Oil and Gas Interests and the surviving entityvalue of all other Oil and Gas Interests shall be the value which would be assigned to such Oil and Gas Interests using the same methodology, assumptions and discount rates used to determine the Engineered Value of the Borrowing Base Properties as of the most recent Redetermination. In addition, for purposes of determining compliance with clause (vi) of this Section with respect to any exchange of Oil and Gas Interests, the value of such exchange shall be the net reduction, if any, in Engineered Value realized or resulting from such exchange.
(b) The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and after giving effect to the Transactions and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower No Loan Party will, nor will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, ,
(i) Merger Sub may consummate the LCA-Vision Acquisition (so long as on the day on which the LCA-Vision Acquisition occurs Merger Sub shall merge into LCA-Vision),
(ii) any Subsidiary of the Borrower may merge into the Borrower in a transaction in which the Borrower is the surviving entity, corporation,
(iiiii) any Subsidiary that is not a Subsidiary Guarantor Loan Party (other than the Borrower) may merge into any Subsidiary Guarantor other Loan Party in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, a Loan Party),
(iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 and
(viiiv) any Person may merge into Permitted Acquisition by a Loan Party, so long as (x) the Borrower aggregate consideration to be paid by the Loan Parties (including any Indebtedness assumed or any Subsidiary issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with an any such Permitted Acquisition where (or any series of related Permitted Acquisitions) shall be less than $3,000,000, and (y) the Borrower aggregate consideration to be paid by the Loan Parties (including any Indebtedness assumed or issued in connection therewith, the amount thereof to be calculated in accordance with GAAP) in connection with all such Permitted Acquisitions shall be less than $12,000,000; provided that any such merger involving a Person that is not a wholly owned Subsidiary is the surviving entityimmediately prior to such merger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower No Loan Party will, nor will not, and will not it permit any of its Subsidiaries Subsidiary to, engage to any material extent in any business other than businesses substantially of the type conducted or contemplated to be conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement hereof and businesses reasonably related or complementary thereto.
(c) No Loan Party will, nor will it permit any Subsidiary to change its fiscal year or any fiscal quarter from the basis in effect on the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Photomedex Inc)
Fundamental Changes. (a) The Borrower will notMerge, and will not permit any Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired), ) to or liquidate or dissolvein favor of any Person, except that:
(i) any Restricted Subsidiary that is a Domestic Subsidiary may merge or consolidate with or dissolve or liquidate into (A) the Company; provided that the Company shall be the continuing or surviving Person, if at or (B) so long as no Event of Default would result therefrom, any one or more other Restricted Subsidiaries that are Domestic Subsidiaries; provided that (x) in any such transaction involving a Subsidiary Guarantor, such Subsidiary Guarantor shall be the time thereof continuing or surviving Person, and (y) no such transaction shall cause any then existingthen-existing Subsidiary Guarantor to become a Subsidiary that would not be required to be a Subsidiary Guarantor pursuant to Section 6.12;
(ii) any Designated Foreign Borrower may merge or consolidate with or dissolve or liquidate into any other Designated Foreign Borrower which is organized or existing under the Laws of the jurisdiction in which the first Designated Foreign Borrower is organized;
(iii) any Restricted Subsidiary that is a Foreign Subsidiary (other than a Designated Foreign Borrower) may merge or consolidate with or dissolve or liquidate into (A) a Designated Foreign Borrower which is organized or existing under the Laws of the jurisdiction in which the first Designated Foreign Borrower is organized; provided that such Designated Foreign Borrower shall be the continuing or surviving Person, or (B) so long as no Event of Default would result therefrom, any one or more other Restricted Subsidiaries that are Foreign Subsidiaries;
(iv) (A) any Subsidiary Guarantor may Dispose of all or substantially all of its assets (including any Disposition that is in the nature of a liquidation) to any other U.S. Loan Party, (B) any Designated Foreign Borrower may Dispose of all or substantially all of its assets (including any Disposition that is in the nature of a liquidation) to any other Loan Party, and (C) any Restricted Subsidiary that is not a Loan Party may Dispose of all or substantially all of its assets (including any Disposition that is in the nature of a liquidation) to any Loan Party or, so long as no Event of Default would result therefrom, any other Restricted Subsidiary;
(v) so long as no Event of Default shall exist or would result therefrom, each of the Company and any of its Restricted Subsidiaries may merge into or consolidate with any other Person (other than the Company or any of its Subsidiaries) or permit any other Person (other than the Company or any of its Subsidiaries) to merge into or consolidate with it; provided, however, that in each case, immediately after giving effect thereto no Default shall have occurred and be continuing, (i) in the case of any Subsidiary may merge into such merger or consolidation to which a Borrower is a party (the Borrower in a transaction in which “Existing Borrower”), (x) the Existing Borrower is the surviving entityPerson (and if the Company is a party to such merger or consolidation, the Company is the surviving Person) or (y) if the Person formed by or surviving any such merger or consolidation is not the Existing Borrower (any such Person, the “Successor Borrower”), (A)
(1) if the Existing Borrower is the Company, the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia, and (2) if the Existing Borrower is a Designated Foreign Borrower, the Successor Borrower shall be an entity organized or existing under the Laws of the jurisdiction in which the Existing Borrower is organized, (B) the Successor Borrower shall expressly assume all the obligations of the Existing Borrower under this Agreement and the other Loan Documents to which the Existing Borrower is a party pursuant to documents in form and substance reasonably satisfactory to the Administrative Agent, (C) each applicable Guarantor shall have confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under the Loan Documents (to the same extent as such Guarantee applied to the Existing Borrower’s obligations under the Loan Documents) pursuant to documents in form and substance reasonably satisfactory to the Administrative Agent, (D) the Company shall have delivered to the Administrative Agent such supporting resolutions, incumbency certificates, opinions of counsel and other documents or information, in form, content and scope reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent and (E) the Administrative Agent and the Lenders shall have received satisfactory results of “know your customer”, Sanctions, Act and other similar due diligence reasonably requested by the Administrative Agent and the Lenders, (ii) in the case of any Subsidiary that is not a Subsidiary Guarantor may merge into such merger or consolidation to which any Subsidiary Guarantor in is a transaction in which the party, such Subsidiary Guarantor is the surviving entityPerson, and (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests case of the Borrower and any such merger or consolidation to which any Restricted Subsidiary (other than a Loan Party) is not materially disadvantageous to the Lendersa party, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Restricted Subsidiary is the surviving entityPerson; and
(vi) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Company and its Restricted Subsidiaries may consummate Permitted Restructurings.
(b) The Borrower will notMake any Disposition (including, for avoidance of doubt and without limitation, by way of Investment, Restricted Payment, sale, transfer or other Disposition) of any Cystic Fibrosis Drug Franchise Assets, except:
(i) (A) Dispositions of inventory in the ordinary course of business and (B) Dispositions of cash and Cash Equivalents;
(ii) Dispositions of equipment or real property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(iii) Dispositions of property by a Restricted Subsidiary to the Company or to a Wholly Owned Subsidiary of the Company; provided that (A) if the transferor of such property is a Subsidiary Guarantor, the transferee thereof must be a U.S. Loan Party, and (B) if the transferor of such property is a Designated Foreign Borrower, the transferee thereof must be a Loan Party;
(iv) Dispositions of accounts receivable in connection with the collection, discounting, settlement or compromise thereof in the ordinary course of business;
(v) Dispositions in the ordinary course of business consisting of the abandonment, or allowing to lapse, of Intellectual Property which, in the reasonable good faith determination of the Borrowers, is uneconomical to maintain, non-strategic, negligible, obsolete or otherwise not material to the value of the Cystic Fibrosis Drug Franchise Assets (taken as a whole) or the conduct of their business (taken as a whole);
(vi) Dispositions of Intellectual Property owned by a Loan Party to a Foreign Subsidiary of a Borrower that is a Restricted Subsidiary, to the extent the Administrative Agent (acting in its reasonable credit judgment) approves such Disposition; provided that (iA) the Foreign Subsidiary receiving such Intellectual Property shall covenant and agree not to pledge any interest in such Intellectual Property to any Person (other than a Loan Party); (iiB) any such transferred Intellectual Property shall be subject to a perpetual exclusive license in favor of the Loan Parties for use in the North America in form and substance reasonably satisfactory to the Administrative Agent, and which license shall (1) not be subject to any anti-assignment or change of control provisions (in each case limiting the Loan Party), (2) expressly permit the creation, continuation and performance of any Lien thereon securing the Guaranteed Obligations (as such Guaranteed Obligations may be modified, increased, extended, refinanced, renewed or replaced from time to time), (3) be terminable at will by the Loan Parties (which termination shall require the Administrative Agent’s consent), (4) require the Administrative Agent’s consent for any amendment of the license agreement that alters the terms and conditions of the license agreement in any manner adverse to the interests of a Loan Party or the Lenders, (5) specify that it may not permit be terminated in connection with a Loan Party’s bankruptcy, (6) include the right of any Loan Party that is a party thereto to assume and assign the license in the event of its Subsidiaries bankruptcy or insolvency, and (7) include a covenant by the Foreign Subsidiary not to move for, or consent to, engage to the termination of or rejection of the license in a bankruptcy or insolvency of the Foreign Subsidiary; and (iiiC) any Foreign Subsidiary receiving such Intellectual Property shall at all times remain a Restricted Subsidiary and shall not conduct any other material extent in any business other than businesses substantially (1) holding such Intellectual Property, (2) entering into license agreements in the ordinary course of business with Foreign Subsidiaries that are Restricted Subsidiaries for use of such Intellectual Property in foreign jurisdictions in the ordinary course of business and (3) entering into license agreements with third parties for use in foreign jurisdictions in the ordinary course of business, on customary terms for fair value; and
(vii) Dispositions consisting of (A) non-exclusive licenses or sublicenses of (or other non-exclusive grants of rights to use or exploit) Intellectual Property in the ordinary course of business (including inter-company agreements between or among any Loan Parties and Restricted Subsidiaries), (B) outside of the type conducted United States, Canada, Ireland, the United Kingdom, France, Germany, Italy, Spain, Australia and the Netherlands, exclusive licenses or sublicenses of (or other exclusive grants of rights to use or exploit) Intellectual Property of the Loan Parties and their Restricted Subsidiaries to third parties, in the ordinary course of business consistent with past practices, to the extent necessary to facilitate the commercial distribution of products and services in regions and territories in which the Loan Parties and their Restricted Subsidiaries do not distribute their products directly, provided that none of the licenses or sublicenses described in the foregoing clauses (A) and (B) (either individually or in the aggregate) could reasonably be expected to (x) result in a Material Adverse Effect, (y) materially interfere with the business of the Loan Parties and their Restricted Subsidiaries, taken as a whole, or (z) solely with respect to clause (B), impair in any material respect the value of the Intellectual Property licensed or granted and (C) licenses or sublicenses of (or other exclusive grants of rights to use or exploit) Intellectual Property approved by the Borrower Administrative Agent (acting in its reasonable credit judgment); provided, that any Disposition pursuant to this Section 7.04(b) (other than Section 7.04(b)(i)(A), (b)(iv), (b)(vi) and its Subsidiaries on (b)(vii)) shall be for Fair Market Value; provided further, that nothing herein shall preclude the date Company or any Restricted Subsidiary from consummating any Permitted Restructuring so long as no Default or Event of execution of this Agreement Default has occurred and businesses reasonably related is continuing or complementary theretowould result therefrom.
Appears in 1 contract
Fundamental Changes. (a) The Borrower Holdings will not, and will not permit any Subsidiary of its Subsidiaries to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided that if, except that, if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing, (i) the Borrower or any Subsidiary may merge into with a Person (other than Holdings) if the Borrower in a transaction in which (or such Subsidiary if the Borrower is not a party to such merger) is the surviving entityPerson, (ii) any Subsidiary that is not a Subsidiary Guarantor of the Borrower may merge into another Subsidiary of the Borrower, provided that if any party to such merger is a Subsidiary Guarantor in a transaction in which Loan Party, the Subsidiary Guarantor is Loan Party shall be the surviving entityPerson, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor of the Borrower may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another Subsidiarya Subsidiary Loan Party, (viiiv) any Subsidiary that is not of the Borrower (other than a Subsidiary Guarantor 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, Lenders and (viiiv) the Closing Date Merger shall be permitted; provided, further, that any such merger involving a Person may merge into that is not a wholly owned Subsidiary of the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement hereof and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower Company will not, and will not permit any Material Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all 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, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) the Company or any Material Subsidiary may merge into or consolidate with any Person; PROVIDED that (A) in the Borrower case of any merger or consolidation involving the Company, either (x) the Company shall be the continuing or surviving corporation or (y) the continuing or surviving corporation shall be organized under the laws of the United States or any State thereof and shall assume all the Company's obligations under this Agreement in a transaction manner reasonably acceptable to the Administrative Agent, (B) in which the Borrower is case of any merger or consolidation involving a Material Subsidiary, the surviving entityentity shall be a Subsidiary, and (C) in the case of any merger or consolidation involving a Subsidiary that is a guarantor of the Obligations, the surviving entity shall Guarantee the Obligations; PROVIDED FURTHER, however, that notwithstanding the foregoing, no Material Subsidiary may merge or consolidate with the Company and (ii) any Material Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (viincluding by liquidating or dissolving into such other Subsidiary); PROVIDED that any transaction under this paragraph (a) any involving a merger of or a disposition of assets by a non-Wholly Owned Subsidiary that is shall not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is be permitted unless the surviving entityPerson or the acquiring Person is a Wholly Owned Subsidiary. In the event of any merger or consolidation described in clause (i)(y), the Company shall give the Lenders reasonable prior notice thereof in order to allow the Lenders to comply with "know your customer" rules and other applicable regulations.
(b) The Borrower Company will notnot engage in any business or activity, other than the ownership of outstanding Equity Interests of the Subsidiaries and activities incidental thereto and other activities and agreements typical of a holding company that does not itself have any business or operations, and will not own or acquire any assets, other than Equity Interests of the Subsidiaries, cash and Permitted Investments and rights and agreements entered into in accordance with the foregoing.
(c) The Company will not permit any of its the Subsidiaries to, to engage to any material extent in any business other than businesses substantially conducted or proposed as of the type conducted by Effective Date as described in the Borrower and its Subsidiaries on the date of execution of this Agreement Form S-4 and businesses similar, ancillary, complementary or otherwise reasonably related thereto or complementary theretothat are a reasonable extension, development or expansion thereof.
Appears in 1 contract
Sources: Credit Agreement (Expedia, Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any Significant Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Significant Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing, continuing (i) the Borrower or any Significant Subsidiary may merge into with a Person if the Borrower in a transaction in which (or such Subsidiary if the Borrower is not a party to such merger) is the surviving entityPerson, (ii) any Significant Subsidiary that is not a Subsidiary Guarantor may merge into another Subsidiary; provided, that if any Subsidiary Guarantor in party to such merger is a transaction in which the Subsidiary Guarantor is Loan Party, the surviving entityPerson shall be a Loan Party, (iii) any Significant Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to a Subsidiary; provided, that if such Significant Subsidiary is a Loan Party, it may only sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to another Subsidiary GuarantorLoan Party, (viiv) the Borrower or any Significant Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of all or substantially all of the stock of any of its assets Significant Subsidiaries to the Borrower or to another a Subsidiary; provided, that if prior to such sale, transfer, lease or other disposition, the Capital Stock of such Significant Subsidiary was pledged to the Administrative Agent and constituted Collateral, then after such sale, transfer, lease or other disposition, (A) if such Significant Subsidiary is a Wholly Owned Domestic Subsidiary, 100% of the Capital Stock of such Significant Subsidiary shall be pledged to the Administrative Agent, (viiB) if such Significant Subsidiary is a First-Tier Foreign Subsidiary, 65% of the Capital Stock of such Significant Subsidiary shall be pledged to the Administrative Agent or (C) if such Significant Subsidiary is owned, directly or indirectly, by a First-Tier Foreign Subsidiary, 65% of the Capital Stock of the First-Tier Foreign Subsidiary that owns, directly or indirectly, such Significant Subsidiary shall be pledged to the Administrative Agent, (v) any Significant Subsidiary that is not (other than a Subsidiary Guarantor 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 (viiivi) any Person may merge into subject to Section 2.8, sales and other dispositions of property that the Borrower or its Subsidiaries reasonably determine is obsolete and no longer useful in the ordinary course of its business; provided, that with respect to clauses (i) and (ii) of this Section 7.3(a), any such merger involving a Person that is not a Wholly Owned Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any type of business other than helicopter services and such other businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses or services (including other aircraft services) that are reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary of its Subsidiaries to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all the assets of the stock of any of Borrower and its Subsidiaries on a consolidated basis (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve, except ; provided that, if in the case of the following clauses (i) and (v), if, at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing, (i) the Borrower or any Subsidiary may merge into with a Person if the Borrower in a transaction in which (or such Subsidiary if the Borrower is not a party to such merger and if any party to such merger is a Subsidiary Loan Party, a Subsidiary Loan Party shall be the surviving entityPerson (unless the Borrower is a party thereto, in which case the Borrower shall be the surviving Person)) is the surviving Person, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into another Subsidiary, provided that if any party to such merger is a Subsidiary Guarantor in a transaction in which Loan Party, the Subsidiary Guarantor is Loan Party shall be the surviving entityPerson, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another Subsidiarya Subsidiary Loan Party, (viiiv) any Subsidiary that is not a Subsidiary Guarantor 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 if such Subsidiary is a Subsidiary Loan Party, the assets of such Subsidiary shall be distributed to the Borrower or a Subsidiary Loan Party, (v) subject to clause (ii), any Subsidiary may merge, dissolve or consolidate in connection with the consummation of any Permitted Acquisition or a disposition permitted by Section 7.6, and (viiivi) any Person Subsidiary that is not a Loan Party may merge into sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Subsidiary in connection with an Acquisition where of the Borrower or (or, in the case of a JV Entity, to the owners of such Subsidiary is JV Entity in accordance with the surviving entityJV Documents).
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement US-DOCS\151470090.12 hereof and businesses ancillary or reasonably related to, or complementary theretoextensions of, the business of the Borrower and its Subsidiaries.
Appears in 1 contract
Fundamental Changes. (a) The Borrower Company will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all any substantial part of the stock assets of any of its the Company and the Subsidiaries (in each case, whether now owned or hereafter acquiredtaken as a whole), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, continuing and no Default shall result therefrom (i) any Subsidiary Person may merge into the Borrower Company in a transaction in which the Borrower Company is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor Person may merge into with any Subsidiary Guarantor in a transaction in which the surviving entity is a Subsidiary Guarantor is (and, in the surviving entitycase of a merger involving a Borrower the survivor shall be such Borrower), (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor the Company may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor or a Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower Company or to another Subsidiary, (viiiv) any Subsidiary that is not (other than a Subsidiary Guarantor Borrower) may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and is not materially disadvantageous to the Lenders, (v) the Company and its Subsidiaries may sell, transfer, lease or otherwise dispose of any Foreign Subsidiary (other than a Borrower) or any assets of any Foreign Subsidiary, (vi) this Section shall not be construed to restrict investments permitted by Section 6.04, (vii) this Section shall not be construed to restrict Permitted Securitization Transactions, (viii) any Person the Company and its Subsidiaries may merge into sell, transfer, lease or otherwise dispose of assets used or formerly used in its Long ▇▇▇▇ ▇▇▇▇▇▇’▇ business and (ix) the Borrower Company and its Subsidiaries may sell, transfer, lease or any Subsidiary in connection otherwise dispose of assets with an Acquisition where aggregate fair market value not exceeding US$300,000,000 during the Borrower period subsequent to the date of the Existing Company Credit Agreement (in addition to sales, transfers, leases and other dispositions of assets that would not be prohibited by this Section without giving effect to this clause (ix)); provided that any merger permitted by clause (i) or (ii) of this Section involving a Person that is not a wholly owned Subsidiary immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, A substantial majority of the business engaged in by the Company and will not permit any of its Subsidiaries to, engage will continue to any material extent in any business other than be businesses substantially of the type conducted by the Borrower Company and its Subsidiaries on the date of execution of this Agreement Effective Date (as defined in the Existing Company Credit Agreement) and businesses reasonably related thereto; provided that the foregoing shall not be construed to restrict the conduct of businesses that are limited to serving the Company and its Subsidiaries and their respective franchisees and licensees, such as the creation of Subsidiaries to conduct insurance or complementary theretoinventory purchasing activities for the Company and its Subsidiaries and their respective franchisees and licensees.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Yum Brands Inc)
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor Person may merge into any Subsidiary Guarantor in a transaction in which the surviving entity is a Subsidiary Guarantor (and, if either such Subsidiary is a Subsidiary Guarantor, then the surviving entity, entity shall also be a Subsidiary Guarantor) and (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, nor will it permit any Subsidiary to, make any Asset Disposition except for:
(i) Asset Dispositions among the Borrowers and one or more Subsidiary Guarantors or among any Subsidiary Guarantors;
(viiiii) Asset Dispositions by Foreign Subsidiaries (other than any Person may merge into Subsidiary Borrower) to either the Borrower or any Subsidiary Subsidiary;
(iii) Asset Dispositions expressly permitted by Sections 6.04, 6.06 or 6.07;
(iv) the distribution of promotional items in the ordinary course of business;
(A) the sale or discount without recourse and in the ordinary course of business of accounts receivable in connection with an Acquisition where a Permitted Securitization or (B) the factoring of accounts receivable by Foreign Subsidiaries without recourse and in the ordinary course of business consistent with past practice;
(vi) the granting of licenses, sublicenses, leases or subleases to other Persons not materially interfering with the conduct of the business of the Borrower or any of its Subsidiaries, in the ordinary course of business and not in connection with any financing; and
(vii) other Asset Dispositions of property that, together with all other property of the Borrower and its Subsidiaries previously leased, sold or disposed of in Asset Dispositions made pursuant to this Section 6.03(b)(vii) during the twelve-month period ending with the month in which any such Subsidiary is lease, sale or other disposition occurs, do not constitute a Substantial Portion of the surviving entityproperty of the Borrower and its Subsidiaries.
(bc) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Credit Agreement (Sauer Danfoss Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary of its Subsidiaries to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all the assets of the stock of any of Borrower and its Subsidiaries on a consolidated basis (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided that if, except that, if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing, (i) the Borrower or any Subsidiary may merge into with a Person if the Borrower in a transaction in which (or such Subsidiary if the Borrower is not a party to such merger) is the surviving entityPerson, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into another Subsidiary, provided that if any party to such merger is a Subsidiary Guarantor in a transaction in which Loan Party, the Subsidiary Guarantor is Loan Party shall be the surviving entityPerson, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another Subsidiarya Subsidiary Loan Party, (viiiv) any Subsidiary that is not a Subsidiary Guarantor 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, (v) the Borrower and its Subsidiaries may effect the Spin-Off Transaction pursuant to the Spin-Off Documents, including the distribution of all of the Capital Stock of CTRI and its Subsidiaries to the shareholders of the Borrower; provided, further, 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 7.4, (vi) any Subsidiary may merge, dissolve or consolidate in connection with the consummation of any Permitted Acquisition, and (viiivii) any Person Subsidiary that is not a Loan Party may merge into sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Subsidiary in connection with an Acquisition where of the Borrower or such Subsidiary is the surviving entityBorrower.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement hereof and businesses ancillary or reasonably related to, or complementary theretoextensions of, the business of the Borrower and its Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Ensign Group, Inc)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Subsidiary of its Restricted Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of its assetsProperty, or all or substantially all of the stock of any of its Subsidiaries Borrowing Base Properties (or permit any Sponsored Partnership to Dispose of any Attributed Interests included in the Borrowing Base Properties) or the Equity Interests owned by it in any Restricted Subsidiary or any Sponsored Partnership that holds title to any Attributed Interest (in each case, whether now owned or hereafter acquired), or effect, or enter into an agreement to effect, any Hedge Modification, or liquidate or dissolve, except that, the Borrower, any Restricted Subsidiary or any Sponsored Partnership may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business and, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, :
(i) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, ;
(ii) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into any other Restricted Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entity, a Restricted Subsidiary;
(iii) any Restricted Subsidiary Guarantor or any Sponsored Partnership may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose Dispose of its assets to the Borrower or to another Subsidiary Guarantor, Restricted Subsidiary;
(viiv) any Restricted Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor Sponsored Partnership may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower (or in the case of any Sponsored Partnership the best interest of the holders of the Equity Interests of such Sponsored Partnership) and is not materially disadvantageous to the Lenders;
(v) the Borrower, any Restricted Subsidiary or any Sponsored Partnership may Dispose of equipment and (viii) any Person may merge into related items in the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Subsidiaries or that is being replaced by equipment of comparable value and utility;
(vi) subject to Section 2.11(b) and Section 2.11(c), the Borrower, any Restricted Subsidiary or any Sponsored Partnership may Dispose of Borrowing Base Properties (whether pursuant to a Disposition of all, but not less than all, of the Equity Interests of any Restricted Subsidiary or otherwise) or enter into Hedge Modifications; provided that the Engineered Value (as assigned by the Administrative Agent) of all Borrowing Base Properties Disposed of and the economic effect (as determined by the Administrative Agent) of all Hedge Modifications entered into between Scheduled Redeterminations does not exceed, in connection with an Acquisition where the aggregate for all Credit Parties and the Sponsored Partnerships taken as a whole, ten percent (10%) of the Borrowing Base most recently determined; provided, further, that Borrower shall promptly and in any event within three (3) Business Days thereafter, provide written notice to the Administrative Agent of any such Hedge Modification, setting forth in reasonable detail the terms of such Hedge Modification;
(vii) so long as (x) no Borrowing Base Deficiency exists or would exist after giving effect to any such Disposition or Hedge Modification, as the case may be, and (y) no Default exists or would exist after giving effect to such Disposition or Hedge Modification, as the case may be, the Borrower, the Restricted Subsidiaries and the Sponsored Partnerships may Dispose of Borrowing Base Properties (whether pursuant to a Disposition of all, but not less than all, of the Equity Interests of any Restricted Subsidiary or otherwise) and enter into Hedge Modifications not otherwise permitted by the foregoing clause (vi); provided that:
(1) the Borrower provides the Administrative Agent and the Lenders with at least fifteen (15) days prior written notice of such Disposition or Hedge Modification, setting forth in reasonable detail the Borrowing Base Properties that are subject to such Disposition or the terms of such Hedge Modification, as the case may be;
(2) the Administrative Agent and the Lenders may request an Interim Redetermination of the Borrowing Base in accordance with the procedures and standards set forth in Article III;
(a) with respect to any Disposition of Borrowing Base Properties, the consideration received shall be equal to or greater than the fair market value of the Oil and Gas Interests subject to such Disposition and (b) with respect to any Hedge Modification, the consideration received for such Hedge Modification is greater than or equal to fair market value, in each case, as reasonably determined in good faith by the Board of Directors of the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer certifying to that effect;
(4) at least 90% of the consideration received by the Borrower, any Restricted Subsidiary or any Sponsored Partnership in respect of any such Disposition or Hedge Modification is cash or cash equivalents;
(5) the surviving entityBorrower prepays the Loans to the extent required by Sections 2.11(b) and 2.11(c) as a result of such Disposition or Hedge Modification (as determined after giving effect to any Interim Redetermination pursuant to clause (2) above), and with respect to any Disposition, uses any remaining Net Cash Proceeds received from such Disposition in accordance with the terms and conditions set forth in Section 2.11(b); and
(6) unless otherwise approved in writing by all of the Lenders, such Disposition by the Credit Parties (whether pursuant to one transaction or a series of related transactions) is not a Disposition of all or substantially all of the Borrowing Base Properties (whether pursuant to a Disposition of all, but not less than all, of the Equity Interests of any Restricted Subsidiary or otherwise).
(b) The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries or any Sponsored Partnership to, (i) engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto or complementary thereto.(ii) acquire or make any other expenditure (whether such expenditure is capital, operating or otherwise) in or related to, any Oil and Gas Interests not located within the geographic boundaries of the United States; and
Appears in 1 contract
Sources: Credit Agreement (PDC Energy, Inc.)
Fundamental Changes. (a) The Except as set forth in Schedule 6.3, the Administrative Borrower will not, and will not permit any Subsidiary to, merge into or amalgamate or consolidate with any other Person, or permit any other Person to merge into or amalgamate or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part 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 divide, liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, :
(ia) any Subsidiary that is not a Borrower may merge into with any Borrower in a transaction in which a Borrower is the surviving corporation,
(b) any Subsidiary that is not a Borrower may merge with any Subsidiary that is not a Borrower in a transaction in which the Borrower surviving entity is the surviving entity, a Subsidiary;
(iic) any Subsidiary that is not a Subsidiary Guarantor may merge into with any Subsidiary Guarantor Person in a transaction in which the Subsidiary Guarantor surviving entity is a Subsidiary;
(d) any Borrower (other than the Administrative Borrower) may merge with any Person in a transaction in which the surviving entity is a Borrower and the Administrative Borrower may merge with any Person in a transaction in which the surviving entity is the surviving entity, Administrative Borrower;
(iiie) the Administrative Borrower and any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the a Borrower or to another Subsidiary Guarantor, Subsidiary;
(vif) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Administrative Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Borrowers and is not materially disadvantageous to the Lenders;
(g) the Administrative Borrower and any Subsidiary may sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions), assets and properties so long as the net book value of all such dispositions from and after the Effective Date, shall not, in the aggregate, exceed 25% of the Administrative Borrower’s consolidated tangible assets as set forth on the Administrative Borrower’s most recently delivered audited financial statements delivered pursuant to Section 4.1(g) and Section 5.1; and
(viiih) any Person may merge with and into any Borrower (provided that the Borrower shall be the continuing or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not permit or any of its direct or indirect wholly-owned Subsidiaries to, engage to any material extent (provided that the direct or indirect wholly-owned Subsidiaries shall be the continuing or surviving entity) in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoan Acquisition.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary of its Consolidated Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all its assets as an entirety or substantially all of its assetsas an entirety, or all or substantially all of the stock of any of its Consolidated Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary Person may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Consolidated Subsidiary may merge with any other Consolidated Subsidiary, and (iii) the Borrower may merge with or into or consolidate with or transfer its assets as an entirety or substantially as an entirety to any Person, so long as (A) immediately prior to and immediately after giving effect to such merger, consolidation or transfer, the Person with or into which the Borrower shall ultimately merge or consolidate or to whom the Borrower shall ultimately transfer its assets as an entirety or substantially as an entirety is in the Utility Business; (B) the Required Lenders shall have determined (so long as such determination is exercised in good faith and after consultation with the Borrower) that the rating of the first mortgage bonds (or bonds otherwise denominated that benefit from a first Lien on such Person's utility assets, or, if such Person has no first mortgage bonds, the rating of the senior unsecured long-term Indebtedness of such Person that is not a Subsidiary Guarantor may merge into guaranteed and does not benefit from any Subsidiary Guarantor other credit enhancement) of the surviving Person of any such merger, consolidation, acquisition or transfer of assets shall be at least BBB- or higher by S&P and Baa3 or higher by Moody's (unless the requirements of this clause (B) shall have been ▇▇▇▇▇▇ by the Required Lenders); provided that the requirement of this clause (B) shall be deemed to have been satisfied if, prior to the consummation of any such merger, consolidation or transfer, the Borrower shall have delivered written evidence from each such rating agency to the effect that, upon such merger, consolidation or transfer, the applicable rating of such surviving Person would be equal to or higher than the ratings specified in a transaction this clause (B); (C) in the case of any merger or consolidation or transfer of assets in which the Subsidiary Guarantor Borrower is not the surviving entitycorporation, (iii) the Person formed by any Subsidiary Guarantor may merge such consolidation or transfer of assets or into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease which the Borrower shall be merged or otherwise dispose of its consolidated or to which such assets are transferred shall have executed an agreement in form reasonably satisfactory to the Borrower Paying Agent containing an assumption by the surviving Person of the due and punctual performance of each obligation, agreement, covenant and condition of each of the Loan Documents and the Second Indenture to be performed or to another Subsidiary Guarantorcomplied with by the Borrower; and (D) the Paying Agent shall have received an opinion of counsel, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets in form and substance reasonably satisfactory to the Borrower or Paying Agent and its counsel, with respect to another Subsidiarythe due authorization, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests execution, delivery, validity and enforceability of the Borrower assumption agreement referred to in clause (C) of this Section 6.03, of the enforceability and is not materially disadvantageous continuation of the Liens created pursuant to the Lenders, Security Documents and (viii) any Person such other matters as the Required Lenders may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entityreasonably require.
(b) The Borrower will not, and will not permit any of its Consolidated Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoUtility Business.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will Loan Parties, jointly and severally agree that they shall not, and will shall not permit any Subsidiary of their respective Subsidiaries to, merge merge, dissolve, liquidate, spin-off, consolidate, with or into or consolidate with any other another Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired), ) to or liquidate or dissolvein favor of any Person, except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing, or Event of Default exists or would result therefrom,
(a) any Subsidiary of the Borrower may merge with (i) any Subsidiary may merge into the Borrower, provided that the Borrower in a transaction in which shall be the Borrower is the continuing or surviving entityPerson, or (ii) any one or more other Subsidiaries of the Borrower, provided that (i) when any wholly-owned Subsidiary that of the Borrower is not merging with a another Subsidiary Guarantor may merge into of the Borrower, the wholly-owned Subsidiary of the Borrower shall be the continuing or surviving Person, and (ii) when any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is merging with another Subsidiary of the Borrower, the Guarantor shall be the continuing or surviving entity, Person;
(iiib) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary (other than a Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the board of directors of the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous adverse to the Lenders, and interests of the Lenders hereunder in any material respect;
(viiic) any Person Subsidiary of the Borrower may merge into Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary of the Borrower; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor and (ii) prior to, and after giving effect on a pro forma basis, to such transaction, the Loan Parties shall be in compliance with Section 10.17 as of the last day of the fiscal quarter of the Borrower most recently ended (assuming that such transaction was consummated on the first day of such fiscal quarter);
(d) any Subsidiary in connection with an Acquisition where of the Borrower (other than a Guarantor) may merge or such Subsidiary is the surviving entity.consolidate with any other Person in order to effect an Investment permitted pursuant to Section 7.02; and
(be) The any Subsidiary of the Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business (other than businesses substantially a Guarantor) may enter into any merger, dissolution, liquidation or consolidation the purpose of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretowhich is to effect a Disposition permitted pursuant to Section 7.05.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Buenaventura Mining Co Inc)
Fundamental Changes. (a) The Borrower It will not, and will not permit any Subsidiary to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; PROVIDED, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuingcontinuing (i) ADESA or any Subsidiary may merge with a Person if ADESA (or such Subsidiary if ADESA is not a party to such merger) is the surviving Person, (iii) any Subsidiary may merge into another Subsidiary; PROVIDED, that if any party to such merger is the Borrower, the Borrower in a transaction in which the Borrower is shall be the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entityPerson, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to ADESA or the Borrower or to another Subsidiary, and (viiiv) any Subsidiary that is not a Subsidiary Guarantor (other than the Borrower) may liquidate or dissolve if the Borrower ADESA determines in good faith that such liquidation or dissolution is in the best interests of the Borrower ADESA or such Subsidiary and is not materially disadvantageous to the Lenders; PROVIDED, that any such merger involving a Person that is not a wholly-owned Subsidiary immediately prior to such merger shall not be permitted. Notwithstanding the foregoing and (viii) any Person may merge into upon notice to the Borrower or any Administrative Agent, ADESA shall be allowed to restructure Automotive Finance Company from a Subsidiary in connection with an Acquisition where the Borrower or such to a company wholly-owned by ALLETE Automotive Services, Inc., a wholly-owned Subsidiary is the surviving entityof ALLETE.
(b) The Borrower It will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower ADESA and its Subsidiaries on the date of execution of this Agreement hereof and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Term Loan Agreement (Allete Inc)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Subsidiary of its Subsidiaries to, merge enter into any transaction of merger or consolidate with any other Personconsolidation or amalgamation, or permit liquidate, wind up or dissolve itself (or suffer any other Person to merge into liquidation or consolidate with it, dissolution) or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all or substantially all of its assetsProperty. The Borrower will not, or all or substantially all of the stock of nor will it permit any of its Subsidiaries to, to make any Acquisition except for Investments permitted under Section 6.05. Notwithstanding the foregoing provisions of this Section: Amended and Restated Credit Agreement
(in each casea) any Subsidiary of the Borrower may be merged or consolidated with or into:
(i) the Borrower if the Borrower shall be the continuing or surviving corporation or (ii) any other such Subsidiary; provided that if any such transaction shall be between a Subsidiary and a Wholly Owned Subsidiary, whether now owned the Wholly Owned Subsidiary shall be the continuing or hereafter acquired)surviving corporation;
(b) any Subsidiary of the Borrower may Dispose of assets to the Borrower or any other Subsidiary of the Borrower;
(c) subject to Section 6.04, the Borrower or liquidate or dissolve, except that, if at any Subsidiary of the time thereof Borrower may make any Acquisition; provided that (x) immediately prior to and immediately after giving effect thereto to any such Acquisition, no Default shall have occurred and be continuing, (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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, continuing and (viiiy) any Person may merge into unless the Borrower Leverage Ratio at all times during the two consecutive quarterly fiscal periods immediately preceding such Acquisition, determined on a pro forma basis after giving effect to such Acquisition (and to all other Relevant Transactions), shall have been less than 5.00 to 1, the aggregate consideration paid or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted delivered by the Borrower and its Subsidiaries on in connection with all Acquisitions after the date of execution effectiveness of this Agreement shall not exceed $30,000,000; and
(d) the Borrower or any Subsidiary of the Borrower may make any Acquisition from any Subsidiary of the Borrower in each case for consideration that is not in excess of the fair market value of the Property acquired in such Acquisition as determined in good faith by the chief financial officer of the Borrower. Notwithstanding anything to the contrary contained in this Section 6.03, during any Restricted Cash Compliance Period and businesses reasonably related or complementary theretoso long as no Event of Default exists, the Borrower may make any Acquisition (so long as within the Borrower's line of business).
Appears in 1 contract
Sources: Credit Agreement (Be Aerospace Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary of its Subsidiaries to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all the assets of the stock of any of Borrower and its Subsidiaries on a consolidated basis (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided that if, except that, if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing, (i) the Borrower or any Subsidiary may merge into with a Person if the Borrower in a transaction in which (or such Subsidiary if the Borrower is not a party to such merger and if any party to such merger is a Subsidiary Loan Party, a Subsidiary Loan Party shall be the surviving entityPerson (unless the Borrower is a party thereto, in which case the Borrower shall be the surviving Person)) is the surviving Person, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into another Subsidiary, provided US-DOCS\107476819.12 that if any party to such merger is a Subsidiary Guarantor in a transaction in which Loan Party, the Subsidiary Guarantor is Loan Party shall be the surviving entityPerson, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another Subsidiarya Subsidiary Loan Party, (viiiv) any Subsidiary that is not a Subsidiary Guarantor 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 if such Subsidiary is a Subsidiary Loan Party, the assets of such Subsidiary shall be distributed to the Borrower or a Subsidiary Loan Party, (v) subject to clause (ii), any Subsidiary may merge, dissolve or consolidate in connection with the consummation of any Permitted Acquisition, and (viiivi) any Person Subsidiary that is not a Loan Party may merge into sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Subsidiary in connection with an Acquisition where of the Borrower or such Subsidiary is the surviving entityBorrower.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement hereof and businesses ancillary or reasonably related to, or complementary theretoextensions of, the business of the Borrower and its Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Ensign Group, Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary Subsidiary, excluding the Sun World Entities, to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part 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, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary Subsidiary/Person may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor Subsidiary/Person may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entitya Subsidiary, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, and (viiv) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) ; provided that any such merger involving a Person may merge into the Borrower or any that is not a wholly owned Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries (excluding the Sun World Entities) to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
(c) Notwithstanding the foregoing, the Borrower may sell assets to the extent such sale may be consummated pursuant to the terms of the Sun World Indenture without any action or authorization by the Sun World Trustee under the Sun World Indenture or the holders of the Sun World Notes; provided that such sales do not include or affect in any manner the ING Collateral.
(d) Unless an Inactive Subsidiary shall comply with each and every obligation that Participating Subsidiaries (either directly or indirectly) have hereunder or under any of the Loan Documents, (a) the Borrower will not permit such Inactive Subsidiary to engage in any business of any type or nature, (b) the Borrower will not permit the Inactive Subsidiaries, and will cause the Inactive Subsidiaries to refrain from, obtaining any assets or properties of any type or nature, (c) the Borrower will not permit any Inactive Subsidiary to, create, incur, assume or permit to exist any Indebtedness, and (d) the Borrower will not permit any Inactive Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues.
Appears in 1 contract
Sources: Credit Agreement (Cadiz Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary to, merge Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, continuing (i) any Subsidiary of any Borrower may merge into the such Borrower in a transaction in which the such Borrower is the surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary of Holdings (provided that (A) if Kmart Corp. is not a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any Subsidiary Guarantor is a party to such merger (other than with a Borrower or Holdings), such Subsidiary Guarantor shall be the continuing or surviving entity or the continuing or surviving entity shall become a Subsidiary Guarantor may merge into any Subsidiary Guarantor in and (C) if SRAC is a transaction in which party to such merger, then Sears shall comply with the Subsidiary Guarantor is the surviving entityrequirements of Section 6.01(d)), (iii) any Subsidiary Guarantor may merge into any of Holdings other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor than the Borrowers may sell, transfer, lease or otherwise dispose of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (provided that if such sale or transfer includes Collateral and the transferee is not the Borrower or to another Holdings, the transferee shall be a Subsidiary Guarantor), (viiv) any Subsidiary that is not a Subsidiary Guarantor of Holdings other than the Borrowers or Sears may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary a Person that is not a Subsidiary or merge with a Person that is not a Subsidiary, in each case pursuant to a Permitted Disposition, (v) any Subsidiary of Holdings other than the Borrowers, Sears or any Material Subsidiary Guarantor (except, in the case of SRAC, as provided in Section 6.01(d)) may liquidate or dissolve if Holdings and the Borrower determines Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrower Borrowers, Sears, the other Material Subsidiary Guarantors and their Subsidiaries and is not materially disadvantageous in any material respect to Holdings, the Borrowers, Sears, the other Material Subsidiary Guarantors or the Lenders; provided, that a Material Subsidiary Guarantor may liquidate or dissolve into a Person that is a Subsidiary of Holdings immediately prior to such liquidation or dissolution, if the continuing or surviving entity is or shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii), and (viiivi) any Person may merge into the Borrower Holdings or any Subsidiary of Holdings may merge with a Person that is not a Subsidiary of Holdings immediately prior to such merger if, in connection with an Acquisition where the case of any merger involving Holdings, a Borrower or a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as applicable, is the continuing or surviving entity.
entity or, in the case of any merger involving a Subsidiary Guarantor, the continuing or surviving entity shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii); provided that contemporaneously with the occurrence of any of the actions permitted to be taken pursuant to this clause (b) The Borrower will not), and will not permit any of its Subsidiaries to, engage the Borrowers shall furnish to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoCo-Collateral Agents an updated Borrowing Base Certificate.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part 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, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, continuing and no Default shall result therefrom (i) any Subsidiary Person may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor Person may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entitya Subsidiary, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of all or any substantial part of its assets to the Borrower or to another Subsidiary Guarantoror to a joint venture pursuant to an investment permitted by Section 6.04, (viiv) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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, (v) restaurants comprising such assets may be sold (directly or indirectly) for cash consideration (A) pursuant to any transaction constituting a Prepayment Event provided that a prepayment would then or thereafter be required under Section 2.11(b) as a result of such transaction or (B) in the case of a sale by a Foreign Subsidiary, pursuant to any transaction that would constitute a Prepayment Event if such Foreign Subsidiary were a Domestic Subsidiary (disregarding the proviso to the definition of "Prepayment Event" for this purpose), (vi) restaurants comprising such assets may be sold (directly or indirectly) by the Borrower or any Domestic Subsidiary provided that any transaction (or series of related transactions) consummated in reliance upon this clause (vi) involve the sale (directly or indirectly) of assets with a fair market value not exceeding $250,000,000, (vii) a Subsidiary may transfer all or any substantial part of its assets pursuant to investments in joint ventures permitted by Section 6.04 and (viii) Subsidiaries may engage in any of the foregoing transactions to effect the reformation or restructuring of the form of ownership thereof in a manner that is not prohibited by any other Section of this Agreement; provided that any such merger involving a Person may merge into the Borrower or any that is not a wholly owned Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement Effective Date (after giving effect to the Spin-Off Transactions) and businesses reasonably related thereto; provided that the foregoing shall not be construed to prohibit the conduct of businesses that are limited to serving the Borrower and its Subsidiaries, such as the creation of Subsidiaries to conduct insurance or complementary theretoinventory purchasing activities for the Borrower and its Subsidiaries.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary of its Restricted Subsidiaries to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided that if, except that, if at the time thereof and immediately after giving effect thereto thereto, no Event of Default shall have occurred and be continuing, :
(a) the Borrower may merge or consolidate with a Person if (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, Person and (ii) after giving pro forma effect to the transaction, (x) the Borrower shall be in compliance with the Minimum Liquidity Condition and (y) the Borrower and its Restricted Subsidiaries shall have a Debt to Equity Ratio of no greater than 1.00:1.00;
(b) any Restricted Subsidiaries may merge or consolidate with a Person or sell, lease, transfer or otherwise dispose of all or substantially all of its assets to another Person; provided that:
(i) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (including by merger) is less than or equal to $35,000,000; or
(ii) after giving pro forma effect to such transaction, (x) the Borrower and its Restricted Subsidiaries receive consideration at the time of such transaction at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of (including by merger), (y) the Borrower shall be in compliance with the Minimum Liquidity Condition and (z) the Borrower and its Restricted Subsidiaries shall have a Debt to Equity Ratio of no greater than 1.00:1.00;
(c) any Restricted Subsidiary that may merge or consolidate with a Person in connection with the acquisition thereof, so long as such Restricted Subsidiary is not the surviving Person or the Person surviving such merger shall, after giving effect to such acquisition, be a Restricted Subsidiary;
(d) any Restricted Subsidiary Guarantor may merge into another Restricted Subsidiary; provided that if any Subsidiary party to such merger is a Guarantor, the Guarantor in a transaction in which the Subsidiary Guarantor is shall be the surviving entity, Person;
(iiie) any Restricted Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another Subsidiary, a Guarantor; and
(viif) any Restricted Subsidiary that is not (other than a Subsidiary Guarantor Guarantor) 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 (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower Holdings will not, and will not permit any Restricted Subsidiary to, amalgamate, merge into or consolidate with any other Person, or permit any other Person to amalgamate, merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all 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, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing:
(a) any Subsidiary (that is not a Borrower or an Indian/PRC Holdco) may amalgamate, merge or consolidate with (i) any Subsidiary Holdings or a Borrower, provided that Holdings or a Borrower, as the case may merge into be, shall be the Borrower in a transaction in which the Borrower is the continuing or surviving entityPerson, or (ii) any Subsidiary one or more other Restricted Subsidiaries (that is not a Borrower or an Indian/PRC Holdco); provided that in the cases of each of clauses (i) and (ii), if such Subsidiary Guarantor is an Unrestricted Subsidiary, any Indebtedness or Lien granted on the assets of such Subsidiary is permitted by Section 6.01 or 6.02;
(b) (i) GII or Headstrong may merge be consolidated with or amalgamated or merged into any other existing Domestic Borrower or any Restricted Subsidiary Guarantor in a transaction in organized under the Laws of the United States or any State thereof; provided that simultaneously with such transaction, (x) the Person formed by such consolidation or into which such Borrower is amalgamated or merged shall expressly assume all obligations of such Borrower under the Loan Documents and (y) the Person formed by such consolidation or into which such Borrower is amalgamated or merged shall take all actions as may be required to preserve the enforceability of the Loan Documents and validity and perfection of the Liens of the Collateral Documents; and (ii) the Bermuda Borrower may be consolidated with or merged into any Restricted Subsidiary organized or formed under the Laws of Bermuda; provided that simultaneously with such transaction, (x) the Person formed by such consolidation or into which the Bermuda Borrower is amalgamated or merged shall expressly assume all obligations of the Bermuda Borrower under the Loan Documents and (y) the Person formed by such consolidation or into which the Bermuda Borrower is amalgamated or merged shall take all actions as may be required to preserve the enforceability of the Loan Documents and validity and perfection of the Liens of the Collateral Documents;
(c) any Restricted Subsidiary, other than an Indian/PRC Holdco, may consummate a merger, amalgamation or consolidation solely in order to effect an Investment permitted under Section 6.05;
(d) any Loan Party or any Restricted Subsidiary Guarantor may consummate a merger, amalgamation, dissolution, liquidation or consolidation (in each case) of the entity that is the surviving entitybeing disposed of pursuant to a Disposition pursuant to Section 6.10 (other than Section 6.10(e)), solely to effect such Disposition; and
(iiie) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower Holdings determines in good faith that such liquidation or dissolution is in the its best interests of the Borrower and is not materially disadvantageous adverse to the LendersLenders and, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or if such Subsidiary is a Loan Party, such Loan Party’s assets and property are transferred to another Loan Party; provided, however, that in each case, immediately after giving effect thereto (A) in the case of any such merger, amalgamation or consolidation to which Holdings or a Borrower is a party, Holdings or a Borrower, as the case may be, is the surviving entity.
corporation and (B) in the case of any such merger, amalgamation or consolidation (other than under clause (d) above) to which any Loan Party (other than Holdings or a Borrower) is a party, a Loan Party is the surviving corporation and (C) each asset that is subject to any Lien under any Collateral Document prior to any such merger, amalgamation, consolidation, dissolution, liquidation or Disposition shall remain subject to valid and perfected Liens under the Collateral Documents after such merger, amalgamation, consolidation, reorganization or Disposition (except, in the case of clause (b) The Borrower will notor (c) only, and will not permit any where such asset is disposed of its Subsidiaries to, engage to any material extent in any business a Person other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related a Loan Party pursuant to a Disposition permitted under Section 6.10 or complementary theretoan Investment permitted under Section 6.05).
Appears in 1 contract
Sources: Credit Agreement (Genpact LTD)
Fundamental Changes. (a) The Borrower Each Obligor will not, and nor will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not it permit any of its Subsidiaries to, engage enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution) or divide. Each Obligor will not, nor will it permit any of its Subsidiaries to convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or any material extent substantial part of the consolidated assets (including by way of sale or transfer of stock of Subsidiaries) of the Obligors and their Subsidiaries. Notwithstanding the foregoing provisions of this Section:
(a) any Obligor or any Subsidiary of an Obligor may be merged or consolidated with or into any other Obligor or any Subsidiary of an Obligor; provided that (i) if any such transaction shall be between a Subsidiary (other than an Obligor or a Subsidiary Guarantor) and a wholly owned Subsidiary (other than an Obligor or a Subsidiary Guarantor), the wholly owned Subsidiary shall be the continuing or surviving entity, (ii) if any such transaction shall involve an Obligor, an Obligor shall be the continuing or surviving entity, and (iii) if any such transaction shall be between a Subsidiary Guarantor and a Non-Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving entity;
(b) any Subsidiary of an Obligor may sell, lease, transfer or otherwise dispose of any or all of its property (upon voluntary liquidation or otherwise) to (i) an Obligor or (ii) in the case of any such Subsidiary that is not itself an Obligor, any wholly owned Subsidiary of an Obligor;
(c) the Equity Interests of any Subsidiary of an Obligor may be sold, transferred or otherwise disposed of to (i) an Obligor or (ii) in the case of any such Subsidiary that is not itself an Obligor, any wholly owned Subsidiary of such Obligor;
(i) the Subsidiaries (other than an Obligor) of the Obligors may undergo a restructuring and (ii) any Obligor or any Subsidiary of an Obligor may be reorganized as a corporation in its jurisdiction of organization or in any business other than businesses substantially Permitted Jurisdiction (each of the type conducted by the Borrower transactions described in clauses (i) and its Subsidiaries on the date of execution (ii) of this Agreement and businesses reasonably related or complementary thereto.paragraph (d), a “Restructuring Transaction”), in each case so long as
Appears in 1 contract
Fundamental Changes. (a) The Borrower will notEnter into any merger, and will not permit any Subsidiary to, merge into consolidation or consolidate with any other Personamalgamation, or permit liquidate, wind up or dissolve itself (or suffer any other Person to merge into liquidation or consolidate with itdissolution), or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, property 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 dissolvebusiness, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any Subsidiary Guarantor (provided that the Subsidiary Guarantor shall be the continuing or surviving corporation and, if at one of the time thereof and immediately after giving effect thereto no Default Subsidiaries is a Wholly Owned Subsidiary Guarantor, the Wholly Owned Subsidiary Guarantor shall have occurred and be continuingthe continuing or surviving corporation);
(b) any Subsidiary of the Borrower that is not a Subsidiary Guarantor may be merged or consolidated with or into any other Subsidiary of the Borrower that is not a Subsidiary Guarantor; provided that if one Subsidiary to such merger or consolidation is a Wholly Owned Subsidiary, the Wholly Owned Subsidiary shall be the continuing or surviving corporation;
(c) any Subsidiary of the Borrower may Dispose of any or all of its assets (i) to the Borrower or any Subsidiary may merge into Guarantor (upon voluntary liquidation or otherwise); provided that any such Disposition by a Wholly Owned Subsidiary Guarantor must be to another Wholly Owned Subsidiary Guarantor or the Borrower in a transaction in which the Borrower is the surviving entityBorrower, (ii) any to a Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which if the Subsidiary Guarantor is making the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that Disposition is not a Subsidiary Guarantor may merge into (and provided that any other such Disposition by a Wholly Owned Subsidiary that is not must be to a Wholly Owned Subsidiary Guarantorand any such Disposition by a first-tier Foreign Subsidiary must be to a first-tier Foreign Subsidiary) or (iii) pursuant to a Disposition permitted by Section 7.5, and upon the occurrence of any of the foregoing events described in clauses (i), (vii), or (iii), the disposing Subsidiary may be dissolved; and
(d) any Subsidiary Guarantor Investment expressly permitted by Section 7.8 may sellbe structured as a merger, transfer, lease consolidation or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entityamalgamation.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Credit Agreement (Delphi Corp)
Fundamental Changes. (a) The Borrower will notMerge, and will not permit any Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (whether in one transaction or in a series of transactions) all or substantially all a Material Portion of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired), ) to or liquidate or dissolvein favor of any Person, except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing, exists or would result therefrom:
(a) any Restricted Subsidiary may merge with (i) any Subsidiary may merge into the Borrower, provided that the Borrower in a transaction in which shall be the Borrower is the continuing or surviving entityPerson, or (ii) any one or more other Restricted Subsidiaries, provided that when any wholly-owned Restricted Subsidiary that is not a merging with another Restricted Subsidiary, the wholly-owned Restricted Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which shall be the Subsidiary Guarantor is the continuing or surviving entity, Person; and
(iiib) any Restricted Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not Dispose of all or a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose Material Portion of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary GuarantorRestricted Subsidiary; provided that if the transferor in such a transaction is a wholly-owned Restricted Subsidiary, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to then the transferee must either be the Borrower or to another a wholly-owned Restricted Subsidiary, ;
(viic) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests any of the Borrower and is not materially disadvantageous to the Lendersits Restricted Subsidiaries may consolidate or merge with another corporation or entity, and (viii) any a Person may consolidate with or merge into the Borrower or any of its Restricted Subsidiaries, provided that (x) if the merger involves a Restricted Subsidiary but does not involve the Borrower, a Restricted Subsidiary shall be the ultimate surviving entity, and (y) if the merger involves the Borrower, the Borrower shall be the ultimate surviving entity, and (z) in connection with each such case (i) the surviving entity shall be after the merger a solvent corporation organized and existing under the laws of the United States of America, any State thereof or the District of Columbia, (ii) immediately after giving effect to such transaction and treating any Indebtedness which becomes an Acquisition where obligation of the Borrower or a Restricted Subsidiary as a result of such transaction as having been incurred by the Borrower or such Restricted Subsidiary is at the surviving entity.
(b) The Borrower will nottime of such transaction, no Default shall have happened and be continuing, and will not permit any (iii) if the merger or consolidation involves the Borrower, the Borrower has delivered to the Administrative Agent a certificate signed by a Responsible Officer and an opinion of its Subsidiaries tocounsel, engage to any material extent each stating that such consolidation or merger complies with this Section 7.03 and such certificate shall additionally state that, in any business other than businesses substantially the opinion of the type conducted by board of directors of the Borrower, the transaction is in the interest of the Borrower; provided, however, that the Borrower and its Subsidiaries on shall not convey or transfer any assets to a Restricted Subsidiary solely for the date purpose of execution improving the credit position of this Agreement and businesses reasonably related or complementary theretosuch Restricted Subsidiary in order to enable it to borrow money.
Appears in 1 contract
Sources: Credit Agreement (Oneok Inc /New/)
Fundamental Changes. (a) The Neither Borrower will, nor ------------------- will not, and will not it permit any Subsidiary of its subsidiaries to, liquidate or dissolve itself (or suffer any liquidation or dissolution) or otherwise wind up, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itcorporation, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any part of its assets, or all or substantially all assets (other than in the ordinary course of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquiredbusiness), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing, then exists or would result therefrom:
(i) any Subsidiary Subsidiaries which are not Material Subsidiaries may merge into the Borrower in a transaction in which the Borrower is the surviving entity, be liquidated or dissolved and their affairs wound up;
(ii) A Borrower or Subsidiary may merge, consolidate or amalgamate with any Subsidiary other Person; provided, that is not a Subsidiary Guarantor such Borrower or -------- Subsidiary, as the case may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor be, is the surviving entitysurviving, continuing or resulting Person in such merger, consolidation or amalgamation and, in the case of a Subsidiary, continues to be a Subsidiary;
(iii) any Subsidiary Guarantor (other than a Borrower) may merge into any other Subsidiary Guarantor, a Borrower or another Subsidiary;
(iv) any Subsidiary that is not (other than a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (vBorrower) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of any of its assets (whether now owned or hereafter acquired and including shares of capital stock, receivables and leasehold interests) to the a Borrower or to another Subsidiary Guarantor, Subsidiary; and
(viv) any Subsidiary that is not a Subsidiary Guarantor Borrower may sell, transfer, lease or otherwise dispose of less than all of its assets (whether now owned or hereafter acquired and including shares of capital stock, receivables and leasehold interests) to any Person, and any Subsidiary may sell, lease or otherwise dispose of all or any part of its assets to the a Person other than a Borrower or to another SubsidiarySubsidiary (whether in connection with a merger, consolidation or amalgamation of such Subsidiary into a Person other than a Borrower or another Subsidiary or otherwise), in each case, for a consideration which represents the fair market value of such assets (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines as determined in good faith by an Authorized Officer of such Subsidiary) of such Subsidiary at the time of such sale, lease or other disposition; provided, that immediately after such liquidation sale, lease or dissolution is other disposition and -------- after giving effect thereto, the aggregate market value of all assets so sold, leased or otherwise disposed of by AI and the Subsidiaries during any Fiscal Year does not exceed 10% of the consolidated assets of the Parent and its subsidiaries as shown in the best interests consolidated financial statements of the Borrower Parent and the Subsidiaries as at the end of the Fiscal Year next preceding the date on which such determination is not materially disadvantageous to the Lenders, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entitymade.
(b) The Neither Borrower will notshall, and will not nor shall it permit any of its Subsidiaries subsidiaries to, engage to at any material extent time, acquire any assets of or interests in any business other Person for a total consideration in excess of $250,000,000, unless such Borrower shall provide to the Administrative Agent and the Lenders, not less than businesses substantially of 10 days prior to the type conducted by proposed acquisition, calculations specifically demonstrating compliance with the Borrower financial covenants in Section 5.14, both before and its Subsidiaries on after giving effect to the date of execution of this Agreement and businesses reasonably related or complementary theretoproposed acquisition.
Appears in 1 contract
Fundamental Changes. (a) The Mergers, Consolidations, Disposal of Assets, Etc. Such Borrower will not, and nor will not it permit any Subsidiary of its Major Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all 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, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Major Subsidiary may merge into WAMU in a transaction in which WAMU is the Borrower surviving corporation, (ii) any Major Subsidiary may merge into any Subsidiary of WAMU in a transaction in which the Borrower surviving entity is the surviving entity, (ii) any a wholly owned Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entityof WAMU, (iii) any Major Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower WAMU or to another wholly owned Subsidiary Guarantorof WAMU, (viiv) such Borrower or any Major Subsidiary of such Borrower may merge or consolidate with any other Person if (x) in the case of a merger or consolidation of such Borrower, such Borrower is the surviving corporation and, in any other case, the surviving corporation is, after giving effect to such merger or consolidation, a wholly owned Subsidiary of such Borrower and (y) after giving effect thereto no Default would exist hereunder and (v) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the either Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the relevant Borrower determines in good faith that such liquidation or dissolution is in the best interests of the such Borrower and is not materially disadvantageous to the Lenders; provided that if any such 61 - 55 - merger shall be between a Subsidiary and a wholly owned Subsidiary of such Borrower , and (viii) any Person may merge into then the Borrower wholly owned Subsidiary shall be the continuing or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entitycorporation.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will shall not, and will shall not permit any Restricted Subsidiary to, merge into or consolidate with any other PersonPerson or divide into two or more persons pursuant to a plan of division, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all all/any substantial part of its assets, or all or substantially all of the stock Equity Interests of any of its Subsidiaries Restricted Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, or purchase or otherwise acquire all or substantially all of the assets or any Equity Interests of any class of, or any partnership or joint venture interest in, any other Person, or permit any Restricted Subsidiary to issue any Equity Interests, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, that (i) any Subsidiary Restricted Subsidiary/Person may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor Restricted Subsidiary/Person may merge into any Restricted Subsidiary Guarantor in a transaction in which the surviving entity is a Wholly Owned Subsidiary, or may divide into two or more new Restricted Subsidiaries; provided that if such existing Restricted Subsidiary Guarantor is the surviving entitya Loan Party, each new Subsidiary shall also be a Loan Party immediately following such division (iii) any Restricted Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to to, or issue Equity Interests to, the Borrower or to another Subsidiary Guarantor, (vi) any Wholly Owned Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Restricted Subsidiary, (viiiv) any Restricted Subsidiary that is not a Subsidiary Guarantor 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 (viiiv) any Person may merge into the Borrower or any Restricted Subsidiary in connection with an Acquisition where may make any Investment permitted by Section 6.6, and (vi) the Borrower or any Restricted Subsidiary may make any Disposition permitted by Section 6.5; provided that any such merger involving a Person that is not a Wholly Owned Subsidiary is the surviving entityimmediately prior to such merger shall not be permitted unless also permitted by Section 6.6.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Subsidiary of its Restricted Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries Borrowing Base Properties or any of the Equity Interests of any Restricted Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, the Borrower or any Restricted Subsidiary may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business, and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into any other Restricted Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entitya Restricted Subsidiary, (iii) any Restricted Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Restricted Subsidiary, (viiiv) any Restricted Subsidiary that is not a Subsidiary Guarantor 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 (viiiv) any Person may merge into the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of equipment and related items in connection with an Acquisition where the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility, (vi) subject to Section 2.12(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties with a value not exceeding, in the aggregate for the Borrower and its Restricted Subsidiaries taken as a whole, five percent (5%) of the Borrowing Base between Scheduled Redeterminations and (vii) with the prior written consent of Required Lenders and subject to Section 2.02(d) and Section 2.12(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties not otherwise permitted pursuant to the foregoing clause (vi). For purposes of the foregoing clause (vi), the value of any Oil and Gas Interests included in the Borrowing Base Properties shall be the Engineered Value of such Subsidiary is Oil and Gas Interests and the surviving entityvalue of all other Oil and Gas Interests shall be the value which would be assigned to such Oil and Gas Interests using the same methodology, assumptions and discount rates used to determine the Engineered Value of the Borrowing Base Properties as of the most recent Redetermination. In addition, for purposes of determining compliance with clause (vi) of this section with respect to any exchange of Oil and Gas Interests, the value of such exchange shall be the net reduction, if any, in Engineered Value realized or resulting from such exchange.
(b) The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and after giving effect to the Transactions and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower No Consolidated Entity will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Wholly-Owned Subsidiary Guarantor in a transaction in which the surviving entity is a Wholly-Owned Subsidiary Guarantor and, if any party to such merger is the surviving entitya Loan Party, 50 is or becomes a Loan Party, (iii) any Subsidiary Guarantor may merge into any (other Subsidiary Guarantor, (ivthan a Loan Party) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 Borrower, is not materially disadvantageous to the LendersLenders and could not reasonably be expected to have a Material Adverse Effect, (iv) any Foreign Subsidiary that is a Wholly-Owned Subsidiary may merge into any other Foreign Subsidiary that is a Wholly-Owned Subsidiary in a transaction in which either such Foreign Subsidiary is the surviving corporation, (v) ▇▇▇▇▇▇▇ River China, ▇▇▇▇▇▇▇ River Mexico and ▇▇▇▇▇▇▇ River Proteomics may be sold, liquidated or dissolved and may take any action described in clauses (h) or (i) of Article VII so long as the Borrower receives its ratable portion of the net proceeds available to the equity holders in connection with such liquidation or dissolution, (vi) any Wholly-Owned Subsidiary may merge into any Person in order to consummate a Permitted Acquisition permitted by Section 6.04(i) so long as after giving effect thereto the Person surviving such merger is a Subsidiary, (vii) the Parent and the Borrower may merge into one another in a transaction in which either entity is the surviving corporation; 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 and (viii) any Person Consolidated Entity may merge into effect the Borrower or any Subsidiary closure of a division in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entityConsolidated Entity.
(b) The Borrower No Consolidated Entity will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries Consolidated Entities on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
(c) The Parent will not own any assets except (i) the Capital Stock of the Borrower, (ii) cash in an amount not to exceed $250,000 at any time (in addition to the cash amount permitted in the succeeding clause (iii)) and (iii) cash in an amount necessary to satisfy its obligations to make the then next scheduled payment of interest on the 3.50% Convertible Notes in accordance with the terms thereof for a period not to exceed 5 Business Days prior to the date of such scheduled interest payment; provided, however, that the Parent may hold cash in an amount not to exceed $2,500,000 at any time prior to July 31, 2003. The Parent shall immediately contribute or loan the cash received upon the issuance of its Capital Stock to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Charles River Laboratories International Inc)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Subsidiary of its Restricted Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries Borrowing Base Properties or any of the Equity Interests of any Restricted Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, the Borrower or any Restricted Subsidiary may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business, and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into any other Restricted Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entitya Restricted Subsidiary, (iii) any Restricted Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Restricted Subsidiary, (viiiv) any Restricted Subsidiary that is not a Subsidiary Guarantor 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, (v) the Borrower or any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of equipment and related items in the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Restricted Subsidiaries or that is being replaced by equipment of comparable value and utility, (vi) the Borrower or any Restricted Subsidiary may sell, transfer or otherwise dispose of the Excluded Properties, (vii) subject to Section 2.12(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties with a value not exceeding, in the aggregate for the Borrower and its Restricted Subsidiaries taken as a whole, 5% of the Borrowing Base between Scheduled Redeterminations and (viii) any Person may merge into with the prior written consent of Required Lenders and subject to Section 2.02(d) and Section 2.12(b), the Borrower or any Restricted Subsidiary may sell, transfer, lease, exchange, abandon or otherwise dispose of Borrowing Base Properties not otherwise permitted pursuant to the foregoing clause (ix). For purposes of the foregoing clause (vi), the value of any Oil and Gas Interests included in connection the Borrowing Base Properties shall be the Engineered Value of such Oil and Gas Interests and the value of all other Oil and Gas Interests shall be the value which would be assigned to such Oil and Gas Interests using the same methodology, assumptions and discount rates used to determine the Engineered Value of the Borrowing Base Properties as of the most recent Redetermination. In addition, for purposes of determining compliance with an Acquisition where clause (vi) of this Section with respect to any exchange of Oil and Gas Interests, the Borrower value of such exchange shall be the net reduction, if any, in Engineered Value realized or resulting from such Subsidiary is the surviving entityexchange.
(b) The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and after giving effect to the Transactions and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Senior Revolving Credit Agreement (Exco Resources Inc)
Fundamental Changes. (a) The Borrower will shall not, and will not nor shall it permit any Subsidiary of its Restricted Subsidiaries to, merge directly or indirectly, (i) consummate any Acquisition or (ii) enter into any merger, consolidation or consolidate with any other Personamalgamation, or permit liquidate, wind-up or dissolve itself (or suffer any other Person to merge into liquidation or consolidate with itdissolution) or convey, or sell, transferassign, lease lease, transfer or otherwise dispose of (in one transaction or in a series agree to do any of transactionsthe foregoing at any future time) all or substantially all of its property, business or assets; PROVIDED, HOWEVER, that so long as prior to or all or substantially all of the stock of any of simultaneously with such transactions, Borrower has complied with, and has caused its Subsidiaries to comply with, the provisions of SECTION 7.10:
(in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (ia) any Subsidiary of Borrower may merge be merged or consolidated with or into the Borrower in a transaction in which the so long as Borrower is the surviving entitycorporation or with or into any one or more Wholly-Owned Subsidiaries of Borrower (other than an Unrestricted Subsidiary, Airstar Corporation, Huntsman Headquarters Corporation, Huntsman Polymers Corporation or IRIC); PROVIDED, HOWEVER, that (i) the Wholly-Owned Subsidiary or Subsidiaries shall be the surviving corporation and (ii) in the case of any Subsidiary that merger or consolidation between Subsidiaries at least one of which is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, the surviving Person shall be or become a party to the Amended and Restated Subsidiary Guarantee Agreement);
(vb) any Subsidiary Guarantor of Borrower may sell, transferlease, lease transfer or otherwise dispose of its assets to the Borrower any or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose all of its assets to the Borrower or to another any other Wholly-Owned Subsidiary of Borrower (other than an Unrestricted Subsidiary, );
(viic) any Subsidiary that is not of Borrower (other than a Finance Subsidiary Guarantor or Huntsman Polymers Corporation) may liquidate voluntarily liquidate, wind-up 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 dissolve;
(viiid) any Person transaction permitted pursuant to SECTIONS 8.6(d) may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.be consummated;
(be) The Borrower will not, and will not permit any of its Subsidiaries to, engage agreements to any material extent conduct the transactions referred to in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.CLAUSES (a) through (d) above may be entered into;
Appears in 1 contract
Fundamental Changes. (a) The Borrower Holdings will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired and including, in each case, pursuant to a Delaware LLC Division) or all or substantially all of the stock of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided, except thatthat (i) any Inactive Subsidiary may (A) liquidate into its immediate parent company or dissolve, (B) merge into any other Inactive Subsidiary or (C) merge into the Borrower or any other Restricted Subsidiary that is a Loan Party; provided that the Borrower or such Restricted Subsidiary that is a Loan Party is the survivor of such merger, and (ii) if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuingcontinuing (except, in the case of an Acquisition subject to the Incremental Funds Certain Provision, in which case there is no Default or Event of Default immediately before or immediately after execution and delivery of the applicable Acquisition Agreement and there is no Specified Event of Default at the date the applicable Permitted Acquisition is consummated) (A) the Borrower or any Restricted Subsidiary may merge with a Person (other than Holdings); provided, that (x) if the Borrower is party to such merger, the Borrower shall be the surviving Person and (y) if the Borrower is not a party to such merger, such Restricted Subsidiary or, in connection with a Permitted Acquisition, such Person if upon consummation of such merger such Person becomes a Restricted Subsidiary, is the surviving Person, (iB) any Restricted Subsidiary may merge into another Restricted Subsidiary or the Borrower in a transaction in which Borrower; provided, however, that if the Borrower is a party to such merger, the Borrower shall be the surviving entityPerson, provided, further, that if any Restricted Subsidiary to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person, (iiC) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another Subsidiarya Subsidiary Loan Party, or (viiD) any other Restricted Subsidiary that is not a Subsidiary Guarantor 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 Borrower, is not materially disadvantageous to the Lenders, and (viii) such Restricted Subsidiary dissolves into another Subsidiary Loan Party or the Borrower; provided, that any such merger involving a Person may merge into the Borrower or any that is not a wholly-owned Restricted Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower Holdings will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than (i) substantially the same business as presently conducted or such other businesses substantially that are reasonably related thereto, including but not limited to the business of leasing and selling furniture, consumer electronics, computers, appliances and other household goods and accessories inside and outside of the type United States of America, through both independently-owned and franchised stores, providing lease-purchase solutions, credit and other financing solutions to customers for the purchase and lease of such products, the manufacture and supply of furniture and bedding for lease and sale in such stores, and the provision of virtual rent-to-own programs inside and outside of the United States of America (including but not limited to point-of-sale lease purchase programs), (ii) any other businesses which are ancillary or complementary to, or reasonable extensions or expansions of, the business of Holdings, the Borrower and its Restricted Subsidiaries as conducted as of the Closing Date, as reasonably determined in good faith by the Borrower and (iii) any businesses that are materially different from the business of Holdings, the Borrower and its Restricted Subsidiaries on as conducted as of the date Closing Date provided that any Investments made, funds expended or financial support provided by Holdings, the Borrower and/or its Restricted Subsidiaries in connection with such alternative lines of execution of this Agreement and businesses reasonably related or complementary theretobusiness shall not exceed $25,000,000 in the aggregate at any time outstanding.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, liquidate or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assetsdissolve, or Dispose of all or substantially all of the stock assets of any of its Subsidiaries the Loan Parties, taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, that (a) if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary the Borrower may merge into the Borrower with any Restricted Subsidiary or any other Person in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into with any Restricted Subsidiary Guarantor or any other Person in a transaction in which the Subsidiary surviving entity is a Restricted Subsidiary; provided, that if a Guarantor is party to such transaction, a Guarantor must be the surviving entity, (iii) any the Borrower may Dispose of its assets to a wholly-owned Restricted Subsidiary, and a Restricted Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose Dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Restricted Subsidiary, (viiiv) any Restricted Subsidiary that is not a Subsidiary Guarantor 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 adverse to the LendersLenders and (v) any merger, consolidation, liquidation or dissolution to effect a Disposition otherwise permitted under this Section 6.03, and (viiib) any Person each special purpose securitization entity, receivables or similar financing entity may merge into sell and make other transfers of Receivables Facility Assets to the Borrower purchaser, lender or any Subsidiary in connection with other provider of financing under an Acquisition where the Borrower or such Subsidiary is the surviving entityAccounts Receivables Securitization.
(b) The Notwithstanding anything to the contrary in this Agreement, the Borrower will not, and nor will not it permit any Restricted Subsidiary to (x) sell, assign or transfer or (y) exclusively license or exclusively sublicense, in each case of its Subsidiaries toclauses (x) and (y), engage any Material Intellectual Property to any material extent in any business Unrestricted Subsidiary (other than businesses substantially an exclusive license or an exclusive sublicense for a specific country or a specified field of use, in each case, that is not material to the type conducted by business of the Borrower and its Subsidiaries on Restricted Subsidiaries, taken as a whole, and where the date of execution of this Agreement and businesses reasonably related Borrower or complementary another Restricted Subsidiary does not exclusively license or exclusively sublicense to other Unrestricted Subsidiary(ies) all other worldwide rights with respect thereto).
Appears in 1 contract
Fundamental Changes. (a) The Borrower will Parent, Holdings and the Borrowers shall not, and will not nor shall they permit any other Restricted Subsidiary to, merge into directly or indirectly merge, dissolve, liquidate, amalgamate, consolidate with any other or into another Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired) to or in favor of any Person, except that (other than in the case of clause (c) below), so long as no Event of Default would result therefrom:
(a) Any Restricted Subsidiary (other than Holdings or liquidate any Borrower) may merge, amalgamate or dissolve, except that, if at consolidate with (i) a Borrower (including by a merger); provided that such Borrower shall be the time thereof and immediately after giving effect thereto no Default continuing or surviving Person or (ii) any one or more other Restricted Subsidiaries (other than Holdings or a Borrower); provided that (A) the continuing or surviving Person shall have occurred complied with the requirements of Section 6.12, (B) such merger, amalgamation or consolidation shall be deemed to constitute an Investment and must be continuinga Permitted Investment or a Restricted Investment permitted under Section 7.05 and (C) to the extent constituting a Disposition, such Disposition must not be prohibited hereunder;
(b) (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Restricted Subsidiary that is not a Subsidiary Guarantor Loan Party may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entitymerge, (iii) any Subsidiary Guarantor may merge amalgamate or consolidate with or into any other Subsidiary Guarantor, (iv) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, Loan Party and (vii) any Restricted Subsidiary Guarantor may sell, transfer, lease (other than Holdings or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (viSwedish Borrower) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve dissolve, and any Borrower (other than the Swedish Borrower) or any Restricted Subsidiary (other than Holdings or the Swedish Borrower) may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if such Borrower or Restricted Subsidiary determines in good faith that such liquidation or dissolution action is in the best interests interest of the such Borrower or Restricted Subsidiary and 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 together with the Required Lenders unless such Disposition of assets otherwise 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 (other than Holdings or any Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrowers or to any Restricted Subsidiary (other than Holdings); provided that such Disposition shall be deemed to constitute an Investment and must be permitted under Section 7.05;
(d) any Restricted Subsidiary (other than Holdings or any Borrower) may merge, amalgamate or consolidate with, or dissolve into, any other Person in order to effect any Permitted Investment or Restricted Investment permitted under Section 7.05; provided that (i) the continuing or surviving Person shall, to the extent subject to the terms hereof, have complied with the requirements of Section 6.12 (and such Restricted Subsidiary is a Subsidiary Guarantor, the continuing or surviving Person shall be a Subsidiary Guarantor), (ii) such Investment must be a Permitted Investment or Restricted Investment permitted under Section 7.05, (iii) to the extent constituting a Disposition, such Disposition IF "1" = "1" "#4875-2924-7575v15" "" #4875-2924-7575v15 AMERICAS 120585256 must be permitted hereunder and (viiiiv) in any merger, amalgamation or consolidation with Parent, Parent shall be the continuing or surviving person; and
(e) any Person may merge into the Borrower Restricted Subsidiary (other than Holdings or any Subsidiary Borrower) may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
order to effect a Disposition permitted pursuant to Section 7.04 (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted Dispositions permitted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoSection 7.03).
Appears in 1 contract
Sources: Credit Agreement (Oatly Group AB)
Fundamental Changes. (a) The Borrower will not, and will not permit any Significant Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Significant Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing, continuing (i) the Borrower or any Significant Subsidiary may merge into with a Person if the Borrower in a transaction in which (or such Subsidiary if the Borrower is not a party to such merger) is the surviving entityPerson, (ii) any Significant Subsidiary that is not a Subsidiary Guarantor may merge into another Subsidiary; provided, that if any Subsidiary Guarantor in party to such merger is a transaction in which the Subsidiary Guarantor is Loan Party, the surviving entityPerson shall be a Loan Party, (iii) any Significant Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to a Subsidiary; provided, that if such Significant Subsidiary is a Loan Party, it may only sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to another Subsidiary GuarantorLoan Party, (viiv) the Borrower or any Significant Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of all or substantially all of the stock of any of its assets Significant Subsidiaries to the Borrower or to another a Subsidiary; provided, that if prior to such sale, transfer, lease or other disposition, the Capital Stock of such Significant Subsidiary was pledged to the Administrative Agent and constituted Collateral, then after such sale, transfer, lease or other disposition, (A) if such Significant Subsidiary is a Wholly Owned Domestic Subsidiary, 100% of the Capital Stock of such Significant Subsidiary shall be pledged to the Administrative Agent, (viiB) if such Significant Subsidiary is a First-Tier Foreign Subsidiary, 65% of the Capital Stock of such Significant Subsidiary shall be pledged to the Administrative Agent or (C) if such Significant Subsidiary is owned, directly or indirectly, by a First-Tier Foreign Subsidiary, 65% of the Capital Stock of the First-Tier Foreign Subsidiary that owns, directly or indirectly, such Significant Subsidiary shall be pledged to the Administrative Agent, (v) any Significant Subsidiary that is not (other than a Subsidiary Guarantor 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 (viiivi) any Person may merge into subject to Section 2.9, sales and other dispositions of property that the Borrower or its Subsidiaries reasonably determine is obsolete and no longer useful in the ordinary course of its business; provided, that with respect to clauses (i) and (ii) of this Section 7.3(a), any such merger involving a Person that is not a Wholly Owned Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any type of business other than businesses substantially of the type helicopter services conducted by the Borrower and or its Subsidiaries on as of the date of execution of this Agreement Closing Date and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: 364 Day Term Loan Credit Agreement (Bristow Group Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary of its Consolidated Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all its assets as an entirety or substantially all of its assetsas an entirety, or all or substantially all of the stock Capital Stock of any of its Consolidated Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary Person may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Consolidated Subsidiary may merge with any other Consolidated Subsidiary, and (iii) the Borrower may merge with or into or consolidate with or transfer its assets as an entirety or substantially as an entirety to any Person, so long as (A) immediately prior to and immediately after giving effect to such merger, consolidation or transfer, the Person with or into which the Borrower shall ultimately merge or consolidate or to whom the Borrower shall ultimately transfer its assets as an entirety or substantially as an entirety is in the Utility Business; (B) the Required Lenders shall have determined (so long as such determination is exercised in good faith and after consultation with the Borrower) that the rating of the first mortgage bonds (or bonds otherwise denominated that benefit from a first Lien on such Person’s utility assets, or, if such Person has no first mortgage bonds, the rating of the senior unsecured long-term Indebtedness of such Person that is not a Subsidiary Guarantor may merge into guaranteed and does not benefit from any Subsidiary Guarantor other credit enhancement) of the surviving Person of any such merger, consolidation, acquisition or transfer of assets shall be at least BBB- or higher by S&P and Baa3 or higher by ▇▇▇▇▇’▇ (unless the requirements of this clause (B) shall have been waived by the Required Lenders); provided that the requirement of this clause (B) shall be deemed to have been satisfied if, prior to the consummation of any such merger, consolidation or transfer, the Borrower shall have delivered written evidence from each such Rating Agency to the effect that, upon such merger, consolidation or transfer, the applicable rating of such surviving Person would be equal to or higher than the ratings specified in a transaction this clause (B); (C) in the case of any merger or consolidation or transfer of assets in which the Subsidiary Guarantor Borrower is not the surviving entitycorporation, (iii) the Person formed by any Subsidiary Guarantor may merge such consolidation or transfer of assets or into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease which the Borrower shall be merged or otherwise dispose of its consolidated or to which such assets are transferred shall have executed an agreement in form reasonably satisfactory to the Borrower Administrative Agent containing an assumption by the surviving Person of the due and punctual performance of each obligation, agreement, covenant and condition of each of the Loan Documents and the Mortgage Indenture to be performed or to another Subsidiary Guarantorcomplied with by the Borrower; and (D) the Administrative Agent shall have received an opinion of counsel, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets in form and substance reasonably satisfactory to the Borrower or Administrative Agent and its counsel, with respect to another Subsidiarythe due authorization, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests execution, delivery, validity and enforceability of the Borrower assumption agreement referred to in clause (C) of this Section 6.02, of the enforceability and is not materially disadvantageous continuation of the Liens created pursuant to the Lenders, Security Documents and (viii) any Person such other matters as the Required Lenders may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entityreasonably require.
(b) The Borrower will not, and will not permit any of its Consolidated Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoUtility Business.
Appears in 1 contract
Fundamental Changes. (a) The Borrower Borrower, Holdings and International will not, and will not permit any Subsidiary to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing, continuing (i) the Borrower, any Guarantor or any Subsidiary may merge into with a Person if the Borrower in a transaction in which (or such Guarantor if the Borrower is not a party to such merger, or such Subsidiary if the Borrower and the Guarantors are not parties to such merger) is the surviving entityPerson, (ii) any Subsidiary that is not a Subsidiary Guarantor of the Borrower may merge into another Subsidiary of the Borrower; provided, that if any party to such merger is a Subsidiary Guarantor in a transaction in which Loan Party, the Subsidiary Guarantor is Loan Party shall be the surviving entityPerson, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor of the Borrower may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another Subsidiarya Subsidiary Loan Party, (viiiv) any Subsidiary that is not of the Borrower (other than a Subsidiary Guarantor Loan Party) may liquidate or dissolve if the Borrower Holdings determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Borrower, International or Holdings and is not materially disadvantageous to the Lenders, Lenders and (viiiv) the interests of the Loan Parties in the Joint Ventures existing on the Closing Date may be sold in accordance with Section 7.6(c); 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 7.4. Notwithstanding the foregoing, Fantasma may merge into the Borrower be liquidated or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entitydissolved.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially Approved Lines of the type conducted by the Borrower Business. Holdings and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoInternational will not engage in any business.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (FGX International Holdings LTD)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Material Subsidiary to, merge into or consolidate with any other Person, or permit into any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assetsassets (as used herein, or all or substantially all of the including capital stock of any of its Subsidiaries and/or other ownership interest) (in each casecollectively, whether now owned or hereafter acquired“Disposition”), except, that (i) a Material Subsidiary may merge into the Borrower or liquidate another Material Subsidiary or dissolve, except that, any other Person (other than the Borrower) if at the time thereof and immediately after giving effect thereto such Person becomes a Material Subsidiary, (ii) the Borrower may merge with another Person if (A) the Borrower is the corporation surviving such merger and (B) after giving effect thereto, no Default shall have occurred and be continuing, (iiii) any Subsidiary Dispositions may merge into be made to the Borrower in or a transaction in which the Borrower is the surviving entity, Material Subsidiary (ii) any Subsidiary or a party that is not concurrently therewith will become a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary GuarantorMaterial Subsidiary), (iv) any Dispositions may be made by a Material Subsidiary to another Person that is not concurrently therewith will become a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary GuarantorMaterial Subsidiary, (v) Dispositions may be made of all or any Subsidiary Guarantor portion of the assets or capital stock of (or other ownership interest in) any ET Entity, or any ET Entity may sell, transfer, lease merge or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantorconsolidate with any Person, (vi) any Subsidiary that is not Dispositions of accounts and receivables (and other related assets) pursuant to a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another SubsidiaryReceivables Purchase Facility, (vii) Dispositions of Designated Charges and other related assets in connection with the issuance of any Subsidiary that is not a Subsidiary Guarantor 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, Approved Cost Recovery Bonds and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 6.10; provided that (x) at the time of such Disposition, no Default shall exist or would result from such Disposition (after giving effect to this clause (viii)) and (y) the aggregate book value of all property disposed of in reliance on this clause (viii) from and after the Closing Date shall not exceed 15% of the greater of the total assets of the Borrower and its Subsidiaries on a consolidated basis as determined in accordance with GAAP, (x) as shown on the date consolidated balance sheet of execution the Borrower and its Subsidiaries as of December 31, 20202021 and (y) as shown on the annual consolidated balance sheet of the Borrower and its Subsidiaries as of December 31 of the year ending (after December 31, 20202021) immediately prior to such disposition; provided, however, that any Disposition pursuant to Section 6.10(viii) shall be for fair market value as determined in good faith by the applicable board of directors or other governing body. No such Dispositions of the types described in clauses (i)-(viii) of the previous sentence shall in any event be prohibited under this Agreement Section 6.10, nor shall any Disposition permitted pursuant to clauses (i) through (viii) above be considered in any determination as to whether any other single or series of Dispositions constituted a sale by the Borrower or any Material Subsidiary of all or substantially all of its assets; provided that when evaluating whether a Disposition (other than a Disposition permitted pursuant to clauses (i)-(viii) above) constitutes a Disposition of all or substantially all of the assets of such Person, such determination shall be made on the basis of the relevant assets of such Person and businesses reasonably related its subsidiaries making such Disposition, excluding for such purpose, such Person’s interests, if any, in the equity or complementary theretoassets of the ET Entities (as if such interests in such equity or assets had never been owned by such Person).
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, :
(i) any Subsidiary Person may merge into or consolidate with, or dissolve or liquidate into, (A) the Borrower in a transaction in which the Borrower is the surviving entityor continuing corporation, or (B) any one or more other Subsidiaries, provided that, with respect to this clause (B), (iiI) when any Wholly-Owned Subsidiary is merging or consolidating with a Subsidiary that is not a Subsidiary Guarantor may merge into Wholly-Owned Subsidiary, the surviving Person shall be a Wholly-Owned Subsidiary; and (II) when any Subsidiary Guarantor in a transaction in which is merging or consolidating with, or dissolving or liquidating into, another Subsidiary, the continuing or surviving Person shall be such Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not or become a Subsidiary Guarantor substantially simultaneously with such merger, consolidation, dissolution or liquidation, as the case may merge into any other Subsidiary that is not a be, and assume all of the obligations of the non-surviving or non-continuing Subsidiary Guarantor; Dispositions permitted by Section 6.04;
(ii) so long as no Event of Default exists or would result therefrom, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve or change its legal form if the Borrower reasonably determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, and ;
(viiiiii) any Person Subsidiary may merge into Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any Subsidiary to another Subsidiary; provided that (i) if the transferor in connection with an Acquisition where such a transaction is a Loan Party, then the transferee must either be the Borrower or a Subsidiary Guarantor (or such Subsidiary transferee shall become a Subsidiary Guarantor) and (ii) if the transferor in such transaction is a Wholly-Owned Subsidiary, the surviving entitytransferee must be a Wholly-Owned Subsidiary;
(iv) each of the transactions disclosed on Schedule 6.03(a) attached hereto; and
(v) any Immaterial Subsidiary may be dissolved or liquidated so long as all assets and interests of such Immaterial Subsidiary are transferred to another Subsidiary on or before the time of its dissolution or liquidation.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by (i) any business in which the Borrower and its Subsidiaries or any such Subsidiary engages in on the date of execution of this Agreement Effective Date and (ii) composites manufacturing and businesses reasonably related ancillary, similar, supportive, complementary or complementary theretosynergistic thereto or reasonable extensions, development or expansion thereof (and non-core incidental businesses acquired in connection with any Permitted Acquisition or other investment permitted hereunder or other immaterial businesses), all in the Borrower’s good faith determination.
(c) The Borrower will not permit its fiscal year to end on a day other than December 31st or change the Borrower’s method of determining its fiscal quarters.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Borrower or any other Subsidiary; provided, that in the case of any merger of one Subsidiary into another, if either of such Subsidiaries shall be a transaction in which the Borrower is Guarantor, the surviving entity, or resulting Subsidiary must at all times after such merger be a Guarantor; (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower transfer all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of substantially all its assets to the Borrower or to another Subsidiary; provided, that in the case of any such transfer by one Subsidiary to another, if the transferor Subsidiary shall be a Guarantor, the transferee Subsidiary must at all times after such transfer be a Guarantor; (iii) any Person other than a Subsidiary may merge with the Borrower or a Subsidiary; provided, that (A) in the case of a merger to which the Borrower is a party, the Borrower must be the surviving or resulting corporation, (viiB) in the case of a merger to which a Subsidiary is a party, the surviving or resulting Person must be a Subsidiary (and, if any such constituent Subsidiary shall have been a Guarantor, a Guarantor) and (C) in the case of any merger referred to in this clause (iii), the Borrower shall be in compliance on a pro forma basis with the covenants set forth in Sections 6.08 and 6.09 as of the end of and for the most recent period of four fiscal quarters for which financial statements shall have been delivered pursuant to Section 5.01, giving effect to such merger and any related incurrence or repayment of Indebtedness as if it had occurred at the beginning of such period; and (iv) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(ba) The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its the Subsidiaries on the date of execution of this the Existing Credit Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Revolving Credit Bridge Facility Agreement (Convergys Corp)
Fundamental Changes. (a) The Subject to subsections (d) and (e) below, the Borrower will shall not, and will not nor shall it permit any Subsidiary of its Subsidiaries to, merge enter into any transaction of merger or consolidate with any other Personconsolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), unless it is a Permitted Acquisition.
(b) Subject to subsections (d) and (e) below, the Borrower shall not, nor shall it permit any other Person of its Subsidiaries to, make any Acquisition, except for (i) Assumed Reinsurance in the ordinary course of business and (ii) Permitted Acquisitions.
(c) Subject to merge into or consolidate with itsubsections (d) and (e) below, or the Borrower shall not, nor shall it permit any of its Subsidiaries to, convey, sell, transferlease, lease transfer or otherwise dispose of (of, in one transaction or in a series of transactions) , all or substantially all a substantial part of its assets, business or all or substantially all of the stock of any of its Subsidiaries (in each caseProperty, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at .
(d) Notwithstanding the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, foregoing provisions of this Section 6.03:
(i) any Subsidiary may merge into of the Borrower in a transaction in which may be merged or consolidated with or into: (A) the Borrower is if the Borrower shall be the continuing or surviving entitycorporation or (B) any other such Subsidiary; provided that if any such transaction shall be between a Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned Subsidiary shall be the continuing or surviving corporation;
(ii) any Subsidiary that is not a Subsidiary Guarantor of the Borrower may merge into sell, lease, transfer or otherwise dispose of any or all of its property (upon voluntary liquidation or otherwise), and the Equity Interests of any Subsidiary Guarantor in may be sold or otherwise transferred, to the Borrower or a transaction in which Wholly Owned Subsidiary of the Subsidiary Guarantor is the surviving entity, Borrower; and
(iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) any Person may merge into or consolidate with or acquire any other Person if, in the Borrower case of a merger or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is consolidation, the surviving entitycorporation is a Wholly Owned Subsidiary of the Borrower.
(be) The Borrower will notFurther notwithstanding the foregoing provisions of this Section 6.03, United Fire, Holding and will not permit any UFC MergeCo, Inc. (an Iowa corporation and a wholly owned subsidiary of its Subsidiaries toHolding) may enter into the Reorganization Transaction, engage to any material extent in any business other than businesses substantially so long as each of the type conducted by Permitted Reorganization Conditions is satisfied (such a Reorganization Transaction consummated in accordance with the Borrower and its Subsidiaries on the date of execution provisions of this Agreement and businesses reasonably related or complementary theretoSection 6.03(e) being the “Permitted Reorganization”).
Appears in 1 contract
Fundamental Changes. (a) The Borrower will notEnter into any merger, and will not permit any Subsidiary to, merge into consolidation or consolidate with any other Personamalgamation, or permit liquidate, wind up or dissolve itself (or suffer any other Person to merge into liquidation or consolidate with itdissolution), or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, property 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 dissolvebusiness, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, :
(i) any Subsidiary may merge into of the Borrower in a transaction in which may be merged or consolidated with or into any Wholly Owned Subsidiary Guarantor (provided that the Borrower is Wholly Owned Subsidiary Guarantor shall be the continuing or surviving entity, ); (ii) any Wholly Owned Subsidiary of the Borrower that is not a Subsidiary Guarantor may merge be merged or consolidated with or into any Wholly Owned Subsidiary Guarantor in of the Borrower that (unless such transaction occurs after the Additional Credit Support Compliance Date) is not a transaction in which the Subsidiary Guarantor is the surviving entity, Silo Entity; (iii) any Subsidiary Guarantor of a Silo Borrower may merge be merged or consolidated with or into such Silo Borrower or any Wholly Owned Silo Loan Party that is a Subsidiary of such Silo Borrower (provided that in the case of a merger or consolidation with or into a Silo Borrower, such Silo Borrower shall be the continuing or surviving entity and, in the case of a merger or consolidation with or into a Wholly Owned Silo Loan Party, such Wholly Owned Silo Loan Party shall be the continuing or surviving entity); and (iv) any Wholly Owned Subsidiary of a Silo Borrower that is not a Wholly Owned Silo Loan Party may be merged or consolidated with or into such Silo Borrower or any other Wholly Owned Subsidiary of such Silo Borrower;
(b) any Subsidiary of the Borrower that is a holding company with no operations may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving entity);
(i) any Subsidiary of the Borrower may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any Wholly Owned Subsidiary Guarantor, (ivii) any Subsidiary of a Silo Borrower may Dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any Wholly Owned Silo Loan Party that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, of such Silo Borrower and (viii) any Subsidiary Guarantor may sell, transfer, lease dispose of any or otherwise dispose all of its assets to the Borrower or any other Subsidiary to another Subsidiary Guarantor, effect a Disposition permitted by Section 7.5(f);
(vid) any Shell Subsidiary may be liquidated or dissolved or otherwise cease to exist; and
(e) so long as no Default or Event of Default has occurred or is continuing or would result therefrom, Holdings may be merged or consolidated with any Affiliate of the Charter Group (provided that either (i) Holdings is the continuing or surviving entity or (ii) if Holdings is not the continuing or surviving entity, such continuing or surviving entity assumes the obligations of Holdings under the Loan Documents to which it is a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets party pursuant to an instrument in form and substance reasonably satisfactory to the Borrower or to another SubsidiaryAdministrative Agent and, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where therewith, the Borrower or Administrative Agent shall receive such Subsidiary is the surviving entitylegal opinions, certificates and other documents as they may reasonably request).
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Each Borrower will shall not, and will shall not permit any Subsidiary Loan Party to, consummate a Division as the Dividing Person or otherwise, merge into or consolidate with any other Person, or cause or permit any other Person to merge into dissolution of such Loan Party or consolidate with itliquidation of its assets, or sell, transfer, lease transfer or otherwise dispose of all or substantially all of such Loan Party’s assets, except that: (i) the US Borrower may merge into, or consolidate with, any other Person (other than the Foreign Borrower but including any other Subsidiary) if upon the consummation of any such merger or consolidation the US Borrower is the surviving Person in one transaction any such merger or in a series consolidation; (ii) any Loan Party may sell, transfer or otherwise dispose of transactions) all or substantially all of its assetsassets (including stock in its Subsidiaries) to any Person if such Person is a Wholly-Owned Subsidiary of the Parent (or a Person who will contemporaneously therewith become a Wholly-Owned Subsidiary of the Parent), or all or so long as, substantially simultaneously therewith, such Person assumes all of the stock obligations of any such Loan Party under the Loan Documents and all other Obligations of its Subsidiaries (such Loan Party, in each case, whether now owned pursuant to documentation reasonably satisfactory to the Administrative Agent; (iii) the Foreign Borrower may merge or hereafter acquiredconsolidate with any Wholly-Owned Subsidiary if upon the consummation of any such merger or consolidation the Foreign Borrower is the surviving Person in such merger or consolidation; and (iv) any Loan Party (other than the Parent or any Borrower) may merge or consolidate with any Wholly-Owned Subsidiary so long as a Loan Party is the surviving Person; provided in the case of any transaction described in the preceding clauses (i), (ii), (iii), and (iv), (A) no Default shall be continuing immediately prior to, or liquidate or dissolve, except that, if at the time thereof and shall exist immediately after giving effect thereto no Default shall have occurred to, such transaction and be continuing, (iB) any Subsidiary may merge into the Borrower Borrowers are in Pro Forma Compliance with the US Sub-Facility Limit and each Guarantee Ratio (as demonstrated in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests duly executed Compliance Certificate dated as of the Borrower and is not materially disadvantageous to the Lenders, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or date of such Subsidiary is the surviving entitytransaction).
(b) The Each Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower Parent and its Subsidiaries on the date of execution of this Agreement and reasonable extensions thereof and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (Diamond Offshore Drilling, Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any Regulated Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of its assets, or all or substantially all of the stock of any of its Regulated Subsidiaries (in each case, whether now owned or hereafter hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entitya Subsidiary, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets in the ordinary course of business or to the Borrower or to another Subsidiary Guarantor, and (viiv) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 LendersLender; 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; and provided further, and (viii) Catamount Resources Corporation may sell any Person may merge into or all of their capital stock to an investor, if the Borrower or any Subsidiary determines in connection with an Acquisition where good faith that such is in the best interests of the Borrower and is not materially disadvantageous to the Lender. The Borrower shall only consummate the publicly announced merger with Green Mountain Power Corporation (“GMP”) if (a) upon the consummation of the merger, all Obligations to the Lender are paid in full and the obligation of the Lender under this Agreement are terminated or (b) the Lender provides its prior written consent to the completion of such Subsidiary is transaction, which may be withheld in the surviving entityLender’s discretion. As a condition to such consent, the Lender may require modifications or changes to this Agreement, including the financial covenants contained herein.
(b) The Borrower will not, and will not permit any of its Regulated Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Regulated Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Credit Agreement (Central Vermont Public Service Corp)
Fundamental Changes. (a) The Borrower Company will not, and will not permit any Subsidiary of its Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, Property or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter in the future acquired), ) or liquidate or dissolve, except that, if at the time thereof of, and immediately after giving effect thereto to, that event, no Default shall have has occurred and be is continuing, ,
(i) any Wholly-Owned Subsidiary of the Company (other than any Subsidiary Guarantor) may merge into the Borrower Company in a transaction in which the Borrower Company is the surviving entity, corporation;
(ii) any Wholly-Owned Subsidiary that is not a of the Company (other than any Subsidiary Guarantor Guarantor) may merge into any other Wholly-Owned Subsidiary Guarantor of the Company (other than any Subsidiary Guarantor) in a transaction in which the surviving entity is a Subsidiary Guarantor is of the surviving entity, Company;
(iii) any Wholly-Owned Subsidiary Guarantor may merge into of the Company (other than any other Subsidiary Guarantor, ) may dispose of its Property to the Company or to another Wholly-Owned Subsidiary of the Company; and
(iv) any Subsidiary that is not a Subsidiary Guarantor may merge into of the Company (other than any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and is not materially disadvantageous to the Lenders, Lender Parties; PROVIDED that any such merger involving a Person that is not a Wholly Owned Subsidiary of the Company immediately prior to that merger shall not be permitted unless also permitted by Section 7.12 and (viii) any Person the Company and its Subsidiaries may merge into make the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entityDispositions permitted by Section 7.21.
(b) The Borrower Company will not engage in any business other than the ownership of the capital stock of HoldCo and AcquisitionCo and will not own or lease any assets other than that capital stock and its rights in and to the Cash Collateral Account, 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 Signing Date and reasonably related activities, except that AcquisitionCo may make the Bridge Acquisition and HoldCo may make the radio station acquisitions from the Seller that are to be financed by the HoldCo Credit Agreement. The Company will, within ten days after the Effective Date, file such applications with the FCC as are necessary to permit the transfer of each FCC License related to the Station to the License Subsidiary, and the Company will, as promptly as possible after that filing (and in any event within 60 days after the Effective Date) cause each FCC License related to the Station to be transferred to the License Subsidiary and to be held at all times thereafter by the License Subsidiary, all in conformity with the FCC Regulations so that those FCC Licenses are validly held by, or reissued to, the License Subsidiary; the Company will further concurrently provide evidence of all such actions to the Administrative Agent (including an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.L.C., special communications counsel to the Obligors, substantially in the form of Exhibit G-2 delivered on the Effective Date). The Company will not permit the License Subsidiary to engage in any business activity other than as expressly set forth in the Station License Management Agreement or to terminate, amend or otherwise modify the Station License Management Agreement.
(c) The Company will not, and will not permit any of its Subsidiaries to:
(i) enter into any so-called "local marketing agreements" or any other arrangements with any other radio broadcasting station (other than with the Company or another Subsidiary with respect to one of their radio stations) pursuant to which the parties agree to function cooperatively in terms of programming, engage advertising, sales, management, consulting or similar services, except for any such agreements or arrangements existing on the Signing Date or on the Effective Date or otherwise established on commercially reasonable terms (as determined in the reasonable opinion of the Company); or
(ii) enter into any so-called "time brokerage agreements" or any other agreements or arrangements under which any radio station (i) sells broadcast time to any material extent in any business other radio broadcasting station (other than businesses substantially to, in the case of a station owned by HoldCo and its Subsidiaries, another station so owned) that programs such broadcast time and sells its own commercial advertising announcements during such broadcast time or (ii) purchases broadcast time on any other radio broadcasting station (other than to, in the case of a station owned by HoldCo and its Subsidiaries, another station so owned) for the purpose of programming such broadcast time and selling its commercial advertisements during such time, except for any such agreements or arrangements existing on the Signing Date or on the Effective Date or otherwise established on commercially reasonable terms (as determined in the reasonable opinion of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoCompany).
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock Capital Stock of any of its Subsidiaries Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, :
(i) any TEP Subsidiary may (A) merge into TEP in a transaction in which TEP is the surviving corporation, (B) merge into any other TEP Subsidiary or (C) sell, transfer, lease or otherwise dispose of its assets to TEP or any other TEP Subsidiary
(ii) any UES Subsidiary may (A) merge into UES in a transaction in which UES is the surviving corporation, (B) merge into any other UES Subsidiary or (C) sell, transfer, lease or otherwise dispose of its assets to UES or any other UES Subsidiary;
(iii) any Person (other than the Borrower) may merge into the Borrower TEP, any TEP Subsidiary or any Pledged Subsidiary in a transaction in which the surviving entity is TEP, such TEP Subsidiary or such Pledged Subsidiary, respectively; provided, that in any such merger involving any Subsidiary the Capital Stock of which is pledged to the Administrative Agent pursuant to the Borrower is Pledge Agreement, such Subsidiary shall be the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, ;
(iv) any Pledged Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary GuarantorPledged Subsidiary; provided, however, that (viA) subject to clause (B) below, any Subsidiary that the Capital Stock of which is not a Subsidiary Guarantor pledged to the Administrative Agent pursuant to the Borrower Pledge Agreement may sell, transfer, lease or otherwise dispose of all or substantially all of its assets only to the Borrower or to another such Subsidiary, and (viiB) UED may sell, transfer, lease or otherwise convey the Black Mountain Generating Station to UNS Electric;
(v) any TEP Subsidiary that or any Pledged Subsidiary (other than any Subsidiary the Capital Stock of which is not a Subsidiary Guarantor pledged to the Administrative Agent pursuant to the Borrower Pledge Agreement) 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 transaction permitted pursuant to Section 6.04 (to the extent not prohibited by any other clause contained in this Section) shall be permitted under this Section 6.03;
(vii) any transaction by TEP or any TEP Subsidiary permitted pursuant to the TEP Loan Documents shall be permitted under this Section 6.03;
(viii) any transaction by UES or any UES Subsidiary permitted pursuant to the UES Loan Documents shall be permitted under this Section 6.03; provided, that in any merger involving UES and any other Person (other than the Borrower), UES shall be the surviving entity;
(ix) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where a transaction in which the Borrower or such Subsidiary is the surviving entitycorporation, so long as the Borrower shall be in compliance, on a pro forma basis after giving effect to such merger, with the covenants set forth in Section 6.09 and 6.10 as such covenants are recomputed as at the last day of the most recently ended fiscal quarter under each such Section as if such merger had occurred on the first day of the four-fiscal-quarter period ended on such date; and
(x) the Borrower may merge with or into or consolidate with or transfer its assets as an entirety or substantially as an entirety to any Person, so long as (A) immediately prior to and immediately after giving effect to such merger, consolidation or transfer, the Person with or into which the Borrower shall ultimately merge or consolidate or to whom the Borrower shall ultimately transfer its assets as an entirety or substantially as an entirety is in the Utility Business; (B) the Person formed by any such merger, consolidation or transfer of assets or into which the Borrower shall be merged or consolidated or to which such assets are transferred shall be in compliance, on a pro forma basis after giving effect to such merger, consolidation or transfer of assets, with the covenants set forth in Section 6.09 and 6.10 as such covenants are recomputed as at the last day of the most recently ended fiscal quarter under each such Section as if such merger, consolidation or transfer of assets had occurred on the first day of the four-fiscal-quarter period ended on such date; (C) in the case of any merger or consolidation or transfer of assets in which the Borrower is not the surviving corporation, the Person formed by any such consolidation or transfer of assets or into which the Borrower shall be merged or consolidated or to which such assets are transferred shall have executed an agreement in form reasonably satisfactory to the Administrative Agent containing an assumption by the surviving Person of the due and punctual performance of each obligation, agreement, covenant and condition of each of the Loan Documents to be performed or complied with by the Borrower; and (D) the Administrative Agent shall have received an opinion of counsel, in form and substance reasonably satisfactory to the Administrative Agent and its counsel, with respect to the due authorization, execution, delivery, validity and enforceability of the assumption agreement referred to in clause (C) of this clause (x), of the enforceability and continuation of the Liens created pursuant to the Security Documents and such other matters as the Required Lenders may reasonably require; provided that any such merger involving a Person that is not a wholly-owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower No Consolidated Entity will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Parent Borrower in a transaction in which the Parent Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Wholly-Owned Subsidiary Guarantor in a transaction in which the surviving entity is a Wholly-Owned Subsidiary Guarantor and, if any party to such merger is the surviving entitya Loan Party, is or becomes a Loan Party, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Parent Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and Parent Borrower, is not materially disadvantageous to the LendersLenders and could not reasonably be expected to have a Material Adverse Effect, and provided that if such Subsidiary is a Guarantor, any assets or business not otherwise disposed of or transferred in accordance with Section 6.06, or, in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, the Parent Borrower or a Guarantor after giving effect to such liquidation or dissolution; provided further that no Subsidiary Borrower may be liquidated or dissolved if any Borrowing or Revolving Credit Exposure attributable to such entity is outstanding at such time, (viiiiv) any Person Foreign Subsidiary may merge into the Borrower or any other Foreign Subsidiary that is a Wholly-Owned Subsidiary in connection with an Acquisition where the Borrower or such a transaction in which a Foreign Subsidiary that is a Wholly-Owned Subsidiary is the surviving entitycorporation, (v) any Wholly-Owned Subsidiary may merge into any Person in order to consummate a Permitted Acquisition permitted by Section 6.04(e) so long as after giving effect thereto the Person surviving such merger is a Subsidiary and (vi) any Consolidated Entity may effect the closure of a division in such Consolidated Entity.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Credit Agreement (Charles River Laboratories International Inc)
Fundamental Changes. (a) The Neither Borrower will, ------------------- nor will not, and will not it permit any Subsidiary of its subsidiaries to, liquidate or dissolve itself (or suffer any liquidation or dissolution) or otherwise wind up, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itcorporation, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any part of its assets, or all or substantially all assets (other than in the ordinary course of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquiredbusiness), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing, then exists or would result therefrom:
(i) any Subsidiary Subsidiaries which are not Material Subsidiaries may merge into the Borrower in a transaction in which the Borrower is the surviving entity, be liquidated or dissolved and their affairs wound up;
(ii) A Borrower or Subsidiary may merge, consolidate or amalgamate with any Subsidiary other Person; provided, that is not a Subsidiary Guarantor such Borrower or -------- Subsidiary, as the case may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor be, is the surviving entitysurviving, continuing or resulting Person in such merger, consolidation or amalgamation and, in the case of a Subsidiary, continues to be a Subsidiary;
(iii) any Subsidiary Guarantor (other than a Borrower) may merge into any other Subsidiary Guarantor, a Borrower or another Subsidiary;
(iv) any Subsidiary that is not (other than a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (vBorrower) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of any of its assets (whether now owned or hereafter acquired and including shares of capital stock, receivables and leasehold interests) to the a Borrower or to another Subsidiary Guarantor, Subsidiary; and
(viv) any Subsidiary that is not a Subsidiary Guarantor Borrower may sell, transfer, lease or otherwise dispose of less than all of its assets (whether now owned or hereafter acquired and including shares of capital stock, receivables and leasehold interests) to any Person, and any Subsidiary may sell, lease or otherwise dispose of all or any part of its assets to the a Person other than a Borrower or to another SubsidiarySubsidiary (whether in connection with a merger, consolidation or amalgamation of such Subsidiary into a Person other than a Borrower or another Subsidiary or otherwise), in each case, for a consideration which represents the fair market value of such assets (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines as determined in good faith by an Authorized Officer of such Subsidiary) of such Subsidiary at the time of such sale, lease or other disposition; provided, that immediately after such liquidation sale, lease -------- or dissolution is other disposition and after giving effect thereto, the aggregate market value of all assets so sold, leased or otherwise disposed of by AI and the Subsidiaries during any Fiscal Year does not exceed 10% of the consolidated assets of the Parent and its subsidiaries as shown in the best interests consolidated financial statements of the Borrower Parent and the Subsidiaries as at the end of the Fiscal Year next preceding the date on which such determination is not materially disadvantageous to the Lenders, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entitymade.
(b) The Neither Borrower will notshall, and will not nor shall it permit any of its Subsidiaries subsidiaries to, engage to at any material extent time, acquire any assets of or interests in any business other Person for a total consideration in excess of $250,000,000, unless such Borrower shall provide to the Administrative Agent and the Lenders, not less than businesses substantially of 10 days prior to the type conducted by proposed acquisition, calculations specifically demonstrating compliance with the Borrower financial covenants in Section 5.14, both before and its Subsidiaries on after giving effect to the date of execution of this Agreement and businesses reasonably related or complementary theretoproposed acquisition.
Appears in 1 contract
Sources: Credit Agreement (Anthem Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock Capital Stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing, then (i) the Borrower or any Subsidiary may merge with a Person if the Borrower (or such Subsidiary if the Borrower is not a party to such merger) is the surviving Person, (ii) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, another Subsidiary; (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another Subsidiarya Subsidiary Loan Party, and (viiiv) any Subsidiary that is not (other than a Subsidiary Guarantor Loan Party) may sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of or other equity interest or may liquidate or dissolve if no Default or Event of Default has occurred and is continuing or would result therefrom, and the Borrower determines in good faith that such sale, lease, transfer, disposition, liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided, however, that in no event shall any such merger, consolidation, sale, transfer, lease or other disposition whether or not otherwise permitted by this Section 7.3 have the effect of releasing any Loan Party from any of its obligations and (viii) any Person may merge into liabilities under this Agreement or the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entityother Loan Documents.
(b) The Borrower will shall not engage in any business activity except the ownership of a limited partner interest in Intermediate Partnership and such activities as may be incidental or related thereto. Intermediate Partnership shall not, and will the Loan Parties shall not permit any of its their Subsidiaries to, engage to any material extent engage, directly or indirectly, in any business other than businesses substantially activity except (a) existing business activities consisting of the type conducted by ownership and operation of natural gas pipelines, coal slurry pipelines, natural gas gathering facilities, midstream gas processing facilities, extension and expansion of such pipelines and facilities and related facilities, services related to the transportation, marketing and processing of natural gas and coal slurry and such activities as may be incidental or related to the aforementioned and (b) new business activities in the area of storage, exploration, development, production, processing, refining, transportation or marketing of gas, oil, coal or products thereof, provided the gross income of such activities allows Borrower and its Subsidiaries on to meet the date exception in Section 7704 of execution of this Agreement and businesses reasonably related or complementary theretothe Code.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Northern Border Partners Lp)
Fundamental Changes. (a) The Neither the US Borrower will notnor the Subsidiary Borrower may consolidate or merge with or into or wind up into (whether or not the US Borrower is the surviving corporation), and may not sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets of the US Borrower and its Restricted Subsidiaries, taken as a whole, in one or more related transactions, to any Person unless:
(i) the US Borrower or the Subsidiary Borrower, as the case may be, is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than the US Borrower or the Subsidiary Borrower) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition will have been made is organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Person, the “Successor Company”); provided that if the US Borrower and the Subsidiary Borrower shall consolidate or merge with and into each other, and the Subsidiary Borrower shall be the Successor Company of such consolidation or merger, the Subsidiary Borrower shall expressly assume the Obligations of the US Borrower;
(ii) the Successor Company, if other than the US Borrower or the Subsidiary Borrower, expressly assumes all the Obligations of the US Borrower or the Subsidiary Borrower, as the case may be, pursuant to documentation reasonably satisfactory to the Administrative Agent;
(iii) immediately after such transaction, no Default exists;
(iv) immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A) the Successor Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to Section 6.01(a); or
(B) each of the Consolidated Leverage Ratio and the Consolidated Secured Debt Ratio for the US Borrower and its Restricted Subsidiaries would be equal to or less than the each ratio immediately prior to such transaction; and
(v) each Guarantor, unless it is the other party to the transactions described above, in which case clause (i)(B) of Section 6.04(c) shall apply, shall have confirmed that its Obligations under the Loan Documents to which it is a party pursuant to documentation reasonably satisfactory to the Administrative Agent;
(vi) the Borrowers shall have delivered to the Administrative Agent an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such documentation relating to the Loan Documents, if any, comply with this Agreement; provided, that the US Borrower shall promptly notify the Administrative Agent of any such transaction and shall take all required actions either prior to or upon the later to occur of 30 days following such transaction (or the earlier of the date of the required delivery of the next Pricing Certificate and the date which is 45 days after the end of the most recently ended fiscal quarter (or such longer period as to which the Administrative Agent may consent) in order to preserve and protect the Liens on the Collateral securing the Secured Obligations. The Successor Company will succeed to, and be substituted for the US Borrower or the Subsidiary Borrower, as applicable, under the Loan Documents.
(b) Notwithstanding the foregoing paragraphs (a)(iii) and (a)(iv),
(i) the US Borrower, the Subsidiary Borrower or a Restricted Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the US Borrower, the Subsidiary Borrower or a Restricted Guarantor; provided that (A) if the Subsidiary Borrower or a Restricted Subsidiary, as the case may be, shall be the Successor Company of such merger, consolidation or transfer involving the US Borrower, then the Subsidiary Borrower or such Restricted Subsidiary, as the case may be, shall expressly assume the Obligations of the US Borrower and (B) if a Restricted Subsidiary shall be the Successor Company of such merger, consolidation or transfer involving the Subsidiary Borrower, then such Restricted Guarantor shall expressly assume the Obligations of the Subsidiary Borrower; and
(ii) the US Borrower may merge with an Affiliate of the US Borrower solely for the purpose of reorganizing the US Borrower in a State of the United States so long as the amount of Indebtedness of the US Borrower and its Restricted Subsidiaries is not increased thereby.
(c) No Restricted Guarantor will, and the US Borrower will not permit any Subsidiary Restricted Guarantor to, consolidate or merge with or into or consolidate with any other Person, wind up into (whether or permit any other Person to merge into not the US Borrower or consolidate with itRestricted Guarantor is the surviving corporation), or sell, assign, transfer, lease lease, convey or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its properties or assets, in one or all or substantially all of the stock of more related transactions, to any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, Person unless:
(i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (iiA) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary such Restricted Guarantor is the surviving entitycorporation or the Person formed by or surviving any such consolidation or merger (if other than such Restricted Guarantor) or to which such sale, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sellassignment, transfer, lease lease, conveyance or otherwise dispose other disposition will have been made is organized or existing under the laws of its assets to the Borrower or to another Subsidiary jurisdiction of organization of such Restricted Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor as the case may sellbe, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests laws of the Borrower and is not materially disadvantageous to United States, any state thereof, the LendersDistrict of Columbia, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where territory thereof (such Restricted Guarantor or Person, the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.“Successor Person”);
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided, except thatthat (i) the Blocker Corporations may merge or liquidate into the Borrower or any other Loan Party, provided that the Borrower or such Loan Party is the survivor of such merger, and (ii) if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuingcontinuing (A) the Borrower or any Subsidiary may merge with a Person if the Borrower (or such Subsidiary if the Borrower is not a party to such merger) is the surviving Person, (iB) any Subsidiary may merge into another Subsidiary or the Borrower in a transaction in which Borrower; provided, however, that if the Borrower is a party to such merger, the Borrower shall be the surviving entityPerson, provided, further, that if any Subsidiary to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person, (iiC) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another Subsidiarya Subsidiary Loan Party, (viiD) any other Subsidiary that is not a Subsidiary Guarantor 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 Borrower, is not materially disadvantageous to the Lenders, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary dissolves into another Subsidiary Loan Party or the Borrower; provided, that any such merger involving a Person that is the surviving entitynot a wholly-owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Aaron's Inc)
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its assetsSubsidiaries when taken as a whole, or all or substantially all of the stock of any of its Subsidiaries when taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary Person may merge into into, or consolidate with, the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor Person (other than the Borrower) may merge into into, or consolidate with, any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entitya Subsidiary, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (viiiv) any Subsidiary that is not a Subsidiary Guarantor 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 (viiiv) any Person Subsidiary may merge into the (or consolidate with) or liquidate or dissolve into, any other Subsidiary, and (vi) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to Borrower or to any other Subsidiary; provided that any such merger involving a Person that is not a wholly owned Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 6.03.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Term Loan Agreement (Weingarten Realty Investors /Tx/)
Fundamental Changes. No Group Member shall (a) The Borrower will notmerge, and will not permit any Subsidiary toconsolidate, merge into dissolve or consolidate amalgamate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactionsb) acquire all or substantially all of its assets, the Stock or Stock Equivalents of any Person or (c) acquire all or substantially all of the assets of any Person or all or substantially all of the stock assets constituting any line of business, division, branch, operating division or other unit operation of any of its Subsidiaries (Person, in each case, whether now owned or hereafter acquired), or liquidate or dissolve, case except that, if at for the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, following: (i) to consummate any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entityPermitted Acquisition, (ii) to consummate any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entityInvestment permitted under Section 8.3(k) or (m), (iii) any Subsidiary Guarantor may merge into any other Subsidiary GuarantorSale permitted hereunder, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantorthe dissolution of the Inactive Subsidiaries, (v) any the dissolution of Subsidiaries of the Borrower that are Wholly-Owned Subsidiaries so long as (x) the assets of such Wholly-Owned Subsidiary Guarantor may sell, transfer, lease are distributed or otherwise dispose of transferred solely to its assets to direct parent company which is the Borrower or to another a Wholly-Owned Subsidiary Guarantorof the Borrower and (y) in the case of a dissolution of a Wholly-Owned Subsidiary that is a Loan Party, such direct parent company also shall be a Loan Party, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose the dissolution of its assets to Subsidiaries of the Borrower that are not Loan Parties so long as the assets of such Subsidiary are distributed or transferred solely to another its equity holders ratably according to their ownership interests in such Subsidiary, (vii) the merger, consolidation or amalgamation of any Subsidiary that is not a Subsidiary Guarantor 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 (viii) any Person may merge with or into the Borrower or any other Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and (viii) the merger, consolidation or amalgamation of any Group Member (other than the Borrower) for the sole purpose, and with the sole material effect, of changing its Subsidiaries State of organization within the United States; provided, however, that (A) in the case of any merger, consolidation or amalgamation involving the Borrower, the Borrower shall be the surviving Person, (B) in the case of any merger, consolidation or amalgamation involving any other Loan Party, a Loan Party shall be the surviving corporation and all actions required to maintain the perfection of the Lien of the Collateral Agent on the date Stock or property of execution such Loan Party shall have been made and (C) for the avoidance of this Agreement and businesses reasonably related doubt, in no event shall the Borrower’s jurisdiction of incorporation be changed to a non-U.S. jurisdiction, whether as a result of a merger or complementary theretootherwise.
Appears in 1 contract
Sources: Credit Agreement (Alere Inc.)
Fundamental Changes. (a) The Other than the SmartFinancial Merger or the Subsequent CCB Merger, the Borrower will not, and will not permit any Subsidiary to, (i) merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or (ii) sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all a material portion of its assets, assets (other than in the ordinary course of business) or all or substantially all of the stock of any of its Subsidiaries or (in each case, whether now owned or hereafter acquired), or iii) liquidate or dissolve; provided, except that if at the time thereof and immediately after giving effect thereto on a pro forma basis, no Default or Event of Default shall have occurred, (A) the Borrower or any Subsidiary may merge with a Person, provided that (1) if the Borrower is a party to such merger, the Borrower shall be the surviving Person in connection with such merger (including the SmartFinancial Merger), (2) if a Subsidiary is a party to such merger, such Subsidiary shall be the surviving Person (if two Subsidiaries are party to such merger, one of those Subsidiaries shall be the surviving Person, including the Subsequent CCB Merger) and (3) such merger shall not constitute a Change in Control of the Borrower, (B) any Subsidiary may sell, lease, transfer or dispose of its assets to the Borrower or another Subsidiary, (C) any Financial Institution Subsidiary may sell loans, investments, or other similar assets in the ordinary course of its business, provided, that such sale or series of sales do not constitute a sale of all or substantially all of such Financial Institution Subsidiary’s assets, and (D) the Borrower and any Subsidiary may sell any (i) real property and improvements thereon that are owned (in whole or in part) by the Borrower or such Subsidiary and that are subsequently leased back by the Borrower or such Subsidiary and (ii) Other Real Estate Owned.
(b) The Borrower will not dispose of any stock or other equity interest in any of its Financial Institution Subsidiaries, whether by sale, assignment, lease or otherwise, without the prior written consent of Lender; provided, however, that, if at the time thereof and immediately after giving effect thereto thereto, on a pro forma basis, no Default or Event of Default shall exist or shall have occurred and be continuingoccurred, (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge shall be permitted to allow Financial Institution Subsidiaries to be merged into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into or consolidated with any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Financial Institution Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if including 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 (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entitySubsequent CCB Merger.
(bc) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement hereof and businesses reasonably related or complementary theretothereto and any types of businesses that are expressly permitted by any Governmental Authority having jurisdiction over the Borrower and/or any Financial Institutions Subsidiary.
Appears in 1 contract
Sources: Loan Agreement (Smartfinancial Inc.)
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the surviving entity is a Subsidiary Guarantor is (provided that the surviving entityBorrower's proportionate interest in the assets and business of the merged subsidiary has not diminished), (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor(provided that the Borrower's proportionate interest in the assets sold, transferred, leased, or disposed of has not diminished) and (viiv) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders.
(a) Except (i) for sales of inventory in the ordinary course of business and the disposition of obsolete, surplus, or otherwise unusable equipment, (ii) for sales of accounts receivable by the Borrower and any Subsidiaries to Volt Information Sciences Funding, Inc. and (iii) pursuant to the Receivables Program (or a similar program if permitted as set forth in the further proviso of the succeeding sentence of this paragraph), the Borrower will not, and will not permit any Subsidiaries to, sell, transfer, lease or otherwise dispose of (viiiin one transaction or in a series of transactions) stock of any Person may merge into Subsidiary (whether owned on the Effective Date or thereafter acquired), or assets (whether owned on the Effective Date or thereafter acquired) representing (i) in any fiscal year, 15% of Consolidated Assets as of the end of the most recently completed fiscal year, or (ii) on a cumulative basis commencing on the Effective Date, 30% of Consolidated Assets as of the end of the most recently completed fiscal year; provided, that there shall be excluded from such annual and cumulative amounts, for the purposes of this sentence, the amount of the proceeds of any such disposition that within 180 days from the date thereof are applied to the acquisition by the Borrower or a Subsidiary thereof of operating assets used in the ordinary course of its business. Without limiting the foregoing, neither the Borrower nor any Subsidiary shall sell, assign, discount or otherwise dispose of notes, accounts receivable or other rights to receive payment, with or without recourse, except (i) for collections and credits in connection with an Acquisition where the ordinary course of business, (ii) for sales of accounts receivables by the Borrower and any Subsidiaries to Volt Information Sciences Funding, Inc. and (iii) pursuant to the Receivables Program (provided that no new commercial paper may be issued thereunder and neither the Borrower nor any Subsidiary may sell accounts receivables to Omnibus Funding Corporation or to any successor thereto); provided further, however, that upon written consent of the Required Lenders in their sole and absolute discretion specifying the terms and conditions of such Subsidiary is consent, a new program involving sales of accounts receivable as part of a securitized facility may be implemented by the surviving entityBorrower.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretothereto except to an extent not material to the Borrower and its Subsidiaries taken as a whole.
Appears in 1 contract
Fundamental Changes. (a) The Domestic Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary 51 57 may merge into the Domestic Borrower in a transaction in which the Domestic Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not (other than a Subsidiary Guarantor Borrower) may merge into any Subsidiary Guarantor in a transaction in which the surviving entity is a Subsidiary Guarantor is (provided that the surviving entityDomestic Borrower's proportionate interest in the assets and business of the merged subsidiary has not diminished), (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Domestic Borrower or to another Subsidiary Guarantor(provided that the Domestic Borrower's proportionate interest in the assets sold, transferred, leased, or disposed of has not diminished) and (viiv) any Subsidiary that is not (other than a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (viiBorrower) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Domestic Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Domestic Borrower and is not materially disadvantageous to the Lenders, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) Except (i) for sales of inventory in the ordinary course of business and the disposition of obsolete, surplus, or otherwise unusable equipment and (ii) for sales of accounts receivable by the Domestic Borrower and any Subsidiaries to Volt Information Sciences Funding, Inc., the Domestic Borrower will not, and will not permit any Subsidiaries to, sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) stock of any Subsidiary (whether owned on the Effective Date or thereafter acquired), or assets (whether owned on the Effective Date or thereafter acquired) representing (i) in any fiscal year, 15% of Consolidated Assets as of the end of the most recently completed fiscal year, or (ii) on a cumulative basis commencing on the July 2, 1997, 30% of Consolidated Assets as of the end of the most recently completed fiscal year; provided, that there shall be excluded from such annual and cumulative amounts, for the purposes of this sentence, the amount of the proceeds of any such disposition that within 180 days from the date thereof are applied to the acquisition by the Domestic Borrower or a Subsidiary thereof of operating assets used in the ordinary course of its business. Without limiting the foregoing, neither the Domestic Borrower nor any Subsidiary shall sell, assign, discount or otherwise dispose of notes, accounts receivable or other rights to receive payment, with or without recourse, except (i) for collections and credits in the ordinary course of business and (ii) for sales of accounts receivables by the Domestic Borrower and any Subsidiaries to Volt Information Sciences Funding, Inc.
(c) The Domestic Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Domestic Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretothereto except to an extent not material to the Domestic Borrower and its Subsidiaries taken as a whole.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuingcontinuing (i) Borrower or any Subsidiary may merge with a Person if Borrower (or such Subsidiary if Borrower is not a party to such merger) is the surviving Person, (iii) any Subsidiary may merge into another Subsidiary; provided, that if any party to such merger is a Subsidiary Loan Party, the Borrower in a transaction in which the Borrower is Subsidiary Loan Party shall be the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entityPerson, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to another a Subsidiary GuarantorLoan Party, (viiv) any Subsidiary that is not (other than a Subsidiary Guarantor Loan Party) may liquidate or dissolve, and/or sell, transfer, lease transfer or otherwise dispose of its assets to all or substantially all of the Borrower or to another Subsidiaryassets, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of Borrower and is not materially disadvantageous to the Lenders and (v) Borrower may sell or otherwise dispose all or substantially all of the assets of the JV Subsidiary or of Borrower’s Capital Stock in the JV Subsidiary if, in either case, Borrower determines in good faith that such sale or disposition is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided, and (viii) that any such merger involving a Person may merge into the Borrower or any that is not a Wholly-Owned Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement hereof and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Material Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of its assets, or all or substantially all of the stock of any of its Material Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the surviving entity is a Subsidiary Guarantor so long as, in the event that either such Subsidiary is a Guarantor, the surviving entityentity is a Guarantor or becomes a Guarantor concurrently with such merger, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary so long as, in the event that the Subsidiary selling, transferring, leasing or otherwise disposing such assets is a Guarantor, the entity to which it sells, transfers, leases or otherwise disposes of its assets is the Borrower or a Guarantor or becomes a Guarantor concurrently with such asset sale, (viiv) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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, Lenders and (viiiv) any Person Subsidiary may merge into the Borrower or consolidate with any Subsidiary Person in connection with an a Permitted Acquisition where so long as, in the Borrower or event that such Subsidiary is a Guarantor, the surviving entityentity is a Guarantor or becomes a Guarantor concurrently with such merger or consolidation; provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Credit Agreement (Masimo Corp)
Fundamental Changes. Directly or indirectly (a) The Borrower will not, and will not permit any Subsidiary to, merge into whether in one transaction or consolidate with any other Persona series of transactions), or permit any other Person to merge into of their respective Subsidiaries directly or consolidate with it, or sell, transfer, lease or otherwise dispose of indirectly (whether in one transaction or in a series of transactions) all to:
(a) enter into any transaction of merger, consolidation or substantially all amalgamation;
(b) liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution);
(c) make any Asset Acquisition other than a Permitted Acquisition;
(d) make any material change in its present method of its assets, conducting business; or
(e) enter into any agreement or all transaction to do or substantially all permit any of the stock foregoing; provided, however, that:
(1) notwithstanding clause (a) of this Section 9.7, the merger, consolidation or amalgamation of any Person with the Domestic Borrower, any Guarantor or NN Italy as the method by which a Permitted Acquisition is accomplished shall be permitted, provided that the Domestic Borrower, such Guarantor or NN Italy is the surviving entity in the transaction (provided, 76 however, that nothing contained herein shall permit the merger of any Subsidiary of the Euro Borrower with and into the Euro Borrower, with the Euro Borrower as the surviving entity, if such merger would violate Danish law);
(2) notwithstanding clause (a) of this Section 9.7, the merger, consolidation or amalgamation of any Subsidiary of the Borrower with any Guarantor or NN Italy shall be permitted, provided that such Guarantor or NN Italy is the surviving entity in the transaction (provided, however, that nothing contained herein shall permit the merger of any Subsidiary of the Euro Borrower with and into the Euro Borrower, with the Euro Borrower as the surviving entity, if such merger would violate Danish law);
(3) notwithstanding clause (a) of this Section 9.7, the merger, consolidation or amalgamation of any Subsidiary of the Borrower with the Domestic Borrower shall be permitted, provided that the Domestic Borrower is the surviving entity in the transaction (provided, however, that nothing contained herein shall permit the merger of any Subsidiary of the Euro Borrower with and into the Euro Borrower, with the Euro Borrower as the surviving entity, if such merger would violate Danish law); and
(4) notwithstanding clause (b) of this Section 9.7, the Borrower may permit the dissolution of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, and any such Subsidiary may suffer such dissolution) if at the time thereof of such dissolution such Subsidiary has no material assets, engages in no material business and immediately after giving effect thereto otherwise has no Default shall have occurred and be continuing, (i) any Subsidiary may merge into material activities other than activities related to the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose maintenance of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in corporate existence and good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entitystanding.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Credit Agreement (Nn Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary to, merge Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing, continuing (i) any Subsidiary of any Borrower may merge into the such Borrower in a transaction in which the such Borrower is the surviving entity, (ii) any Subsidiary of Holdings may merge into Holdings or any other Subsidiary of Holdings (provided that (A) if Kmart Corp. is not a party to such merger, such merger shall be with Holdings, Kmart or a direct Subsidiary of Kmart Corp. and Kmart Corp. shall be the continuing or surviving entity, (B) if any Subsidiary Guarantor is a party to such merger (other than with a Borrower or Holdings), such Subsidiary Guarantor shall be the continuing or surviving entity or the continuing or surviving entity shall become a Subsidiary Guarantor may merge into any Subsidiary Guarantor in and (C) if SRAC is a transaction in which party to such merger, then Sears shall comply with the Subsidiary Guarantor is the surviving entityrequirements of Section 6.01(d)), (iii) any Subsidiary Guarantor may merge into any of Holdings other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor than the Borrowers may sell, transfer, lease or otherwise dispose of its assets to any Borrower, to Holdings or to a Subsidiary of Holdings (provided that if such sale or transfer includes Collateral and the transferee is not the Borrower or to another Holdings, the transferee shall be a Subsidiary Guarantor), (viiv) any Subsidiary that is not a Subsidiary Guarantor of Holdings other than the Borrowers or Sears may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary a Person that is not a Subsidiary or merge with a Person that is not a Subsidiary, in each case, pursuant to a Permitted Disposition, (v) any Subsidiary of Holdings other than the Borrowers, Sears or any Material Subsidiary Guarantor (except, in the case of SRAC, as provided in Section 6.01(d)) may liquidate or dissolve if Holdings and the Borrower determines Borrowers determine in good faith that such liquidation or dissolution is in the best interests of Holdings, the Borrower Borrowers, Sears, the other Material Subsidiary Guarantors and their Subsidiaries and is not materially disadvantageous in any material respect to Holdings, the Borrowers, Sears, the other Material Subsidiary Guarantors or the Lenders; provided, and that a Material Subsidiary Guarantor may liquidate or dissolve into a Person that is a Subsidiary of Holdings immediately prior to such liquidation or dissolution, if the continuing or surviving entity is or shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii), (viiivi) any Person may merge into the Borrower Holdings or any Subsidiary of Holdings may merge with a Person that is not a Subsidiary of Holdings immediately prior to such merger if, in connection with an Acquisition where the case of any merger involving Holdings, a Borrower or a Subsidiary Guarantor, Holdings, such Borrower or such Subsidiary Guarantor, as applicable, is the continuing or surviving entity.
entity or, in the case of any merger involving a Subsidiary Guarantor, the continuing or surviving entity shall become a Subsidiary Guarantor in accordance with Section 6.01(i)(ii) and (bvii) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially Credit Card Royalty Securitization Subsidiary may sell or otherwise finance or Dispose of the type conducted by assets subject to the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoCredit Card Royalty Securitization.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary (other than any Monetization Subsidiary) to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferor lease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries (other than Monetization Subsidiaries) (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuingcontinuing (i) the Borrower or any Subsidiary may merge into or consolidate with a Person if the Borrower (or such Subsidiary if the Borrower is not a party to such merger) is the surviving Person, (iii) any Subsidiary may merge into or consolidate with another Subsidiary; provided, that if any party to such merger or consolidation is a Subsidiary Loan Party, the Borrower in a transaction in which the Borrower is Subsidiary Loan Party shall be the surviving entityPerson; and provided, (ii) further, that notwithstanding the foregoing, any Subsidiary that is not a Subsidiary Guarantor Loan Party may merge into or consolidate with any other Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entityLoan Party, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another Subsidiarya Subsidiary Loan Party, (viiiv) the Borrower and its Subsidiaries may make Asset Sales permitted in Section 7.6, (v) any Subsidiary that is not (other than a Subsidiary Guarantor 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 (viiivi) any Person Subsidiary that is not a Subsidiary Loan Party may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or Person such Subsidiary was formed to acquire or may sell, transfer, lease or otherwise dispose of all or substantially all of its assts to any other Subsidiary that is the surviving entitynot a Subsidiary Loan Party; 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 7.4.
(b) The Borrower will not, and will not permit any of its Subsidiaries (other than Monetization Subsidiaries) to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement hereof and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Except as otherwise expressly permitted by Section 7.6(c), the Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuingcontinuing (i) the Borrower or any Subsidiary may merge with a Person if the Borrower (or such Subsidiary if the Borrower is not a party to such merger) is the surviving Person, (iii) any Subsidiary may merge into another Subsidiary; provided, that if any party to such merger is a Wholly Owned Subsidiary, the Wholly Owned Subsidiary shall be the surviving Person, (iii) any Subsidiary may merge into the Borrower in a transaction in which the if Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary GuarantorPerson, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another a Wholly Owned Subsidiary, (viiv) any Subsidiary that is not no longer operational as a result of a sale or disposition permitted by Section 7.6(c) shall be permitted to liquidate or dissolve and (vi) any Subsidiary Guarantor (other than a Wholly Owned 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, and (viii) that any such merger involving a Person may merge into the Borrower or any that is not a Wholly Owned Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will shall not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default nor shall have occurred and be continuing, (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not it permit any of its Subsidiaries to, engage directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of any assets (whether now owned or hereafter acquired) to or in favor of any Person (including, in each case, pursuant to a Division), except that, so long as no Default exists or would result therefrom:
(a) the Borrower may become party to any material extent merger or consolidation of which the Borrower is the surviving entity so long as immediately after giving effect to such transaction no Default shall occur or be continuing and the Borrower can demonstrate pro forma compliance with the financial covenants contained in Section 7.10 of this Agreement immediately after giving effect to such transaction;
(b) subject to clause (a) above, any Subsidiary of the Borrower may be merged into or consolidated with, or may sell, lease or otherwise dispose of any of its assets to, the Borrower or any other Subsidiary of the Borrower, so long as in the case of a merger or consolidation involving the Borrower, the Borrower shall be the surviving or resulting Person;
(c) the Borrower and its Subsidiaries may dispose of assets in the ordinary course of business that are no longer used or useful in such business or with respect to any business other that is discontinued; and
(d) subject to clause (a) above, the Borrower and its Subsidiaries may from time to time sell or dispose of assets on arm’s length terms; provided, however, that:
(i) after giving effect to the sale of all assets pursuant to Section 7.04(d), the Borrower and its Subsidiaries together have equity (determined in accordance with GAAP) of not less than businesses substantially 60% of the type conducted by equity of the Borrower and its Subsidiaries on September 30, 2020; and
(ii) the date assets sold pursuant to this Section 7.04(d) shall not have contributed revenue, determined in accordance with GAAP, over the period of execution four fiscal quarters prior to the respective sales exceeding 40% of this Agreement the revenue of the Borrower and businesses reasonably related or complementary theretoits Subsidiaries for the four fiscal quarters ended September 30, 2020.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Consolidated Subsidiary to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all of its assetsassets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Consolidated Subsidiaries (in each case, whether now owned or hereafter acquired), ) or liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing, continuing (i) the Borrower or any Consolidated Subsidiary may merge into with a Person if the Borrower in a transaction in which (or such Consolidated Subsidiary if the Borrower is not a party to such merger) is the surviving entityPerson, (ii) any Consolidated Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entityanother Consolidated Subsidiary, (iii) any Consolidated Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower all or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose substantially all of its assets to the Borrower or to another a Consolidated Subsidiary, (viiiv) any Consolidated Subsidiary that is not a Subsidiary Guarantor 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, Lenders and (viiiv) any Consolidated Subsidiary may be sold so long as such sale is permitted under Section 7.6; 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 7.4; provided, further, that at any time, (x) any one or more Permitted Securitization Subsidiaries may merge into the Borrower or consolidate with any one or more Permitted Securitization Subsidiaries and (y) any Permitted Securitization Subsidiary in connection with an Acquisition where the Borrower may be liquidated or such Subsidiary is the surviving entitydissolved.
(b) The Borrower will not, and will not permit any of its Consolidated Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Consolidated Subsidiaries on the date of execution of this Agreement hereof and businesses reasonably related or complementary theretothereto and to consummate a Permitted Securitizaton Transaction.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) assets (including capital stock of Subsidiaries) constituting all or substantially all of its assets, or all or substantially all the assets of the stock of any of its Borrower and the Subsidiaries on a consolidated basis (in each case, whether now owned or hereafter acquired), or, in the case of the Borrower or any Material Subsidiary, liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary Guarantor in a transaction in which the surviving entity is a Subsidiary; provided, however, that no Designated Subsidiary Guarantor is the surviving entitymay merge into a Foreign Subsidiary, (iii) any Permitted Asset Disposition made in accordance with Section 6.06 and involving the sale of a Subsidiary Guarantor may merge into any other Subsidiary Guarantorbe effected by a merger of such Subsidiary, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary; provided, however, that no Designated Subsidiary may sell, transfer, lease or otherwise dispose of its assets to any Foreign Subsidiary, and (viiv) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) ; provided that any such merger involving a Person may merge into the Borrower or any that is not a wholly owned Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 6.05.
(b) The Borrower will not, and will not permit any of its the Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its the Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Credit Agreement (Service Corporation International)
Fundamental Changes. (a) The Borrower will notMerge, and will not permit any Subsidiary to, merge into or consolidate with any other Personor into, or permit any other Person to merge into or consolidate with it, or sellconvey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired), ) to or liquidate or dissolvein favor of any Person, except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing, or Event of Default exists or would result therefrom:
(a) any Subsidiary of Williams LLC may merge with (i) Williams LLC, provided that Williams ▇▇▇ ▇▇▇ll be the continuing or ▇▇▇▇▇▇▇▇g Person, or (ii) an▇ ▇▇▇ ▇▇ more Subsidiaries of Williams LLC, provided that when any Wholly-Owned Subsidiary is merg▇▇▇ ▇▇▇▇ another Subsidiary, the Wholly-Owned Subsidiary shall be the continuing or surviving Person;
(b) any Subsidiary of Williams LLC may sell all or substantially all of its assets (upon v▇▇▇▇▇▇▇▇ liquidation or otherwise), to Williams LLC or to another Subsidiary of Williams LLC; provided that ▇▇ ▇▇▇ seller in such a transaction is a ▇▇▇▇▇▇-owned Subsidiary, then the purchaser must also be a Wholly-Owned Subsidiary;
(c) any Subsidiary of OLP No. 1 may merge into with (i) OLP No. 1, provided that OLP No. 1 shall be the Borrower in a transaction in which the Borrower is the continuing or surviving entityPerson, or (ii) any one or more Subsidiaries of OLP No. 1, provided that when any Wholly-Owned Subsidiary that is not a merging with another Subsidiary, the Wholly-Owned Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which shall be the Subsidiary Guarantor is the continuing or surviving entity, Person;
(iiid) any Subsidiary Guarantor of OLP No. 1 may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease sell all or otherwise dispose substantially all of its assets (upon voluntary liquidation or otherwise), to the Borrower OLP No. 1 or to another Subsidiary Guarantorof OLP No. 1; provided that if the seller in such a transaction is a wholly-owned Subsidiary, then the purchaser must also be a Wholly-Owned Subsidiary; and
(vie) any Subsidiary that OLP No. 1 may enter into mergers and consolidations constituting Permitted Acquisitions (as such term is not a Subsidiary Guarantor may selldefined in the OLP No. 1 Credit Agreement), transfer, lease or otherwise dispose of its assets subject to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is restrictions and limitations contained in the best interests of the Borrower and is not materially disadvantageous to the Lenders, and (viii) any Person may merge into the Borrower or any Subsidiary in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entityOLP No. 1 Credit Agreement.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will shall not, and will shall not permit any Subsidiary Subsidiaries to, consolidate or merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itit or any Subsidiary, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of any class of the stock Capital Stock of any of its Subsidiaries Subsidiary (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, or permit any Subsidiaries to do any of the foregoing, except that, if at the time thereof that so long as immediately before and immediately after giving effect thereto thereto, no Default shall have occurred exist:
(a) the Borrower may merge with any Subsidiary Guarantor and any Subsidiary Guarantor may merge with the Borrower or any other Subsidiary Guarantor, provided that in connection with any merger involving the Borrower, the Borrower shall be continuing, the survivor thereof;
(ib) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into with any other Subsidiary Guarantor in which is not a transaction in which the Subsidiary Guarantor is the surviving entity, Guarantor;
(iiic) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that which is not a Subsidiary Guarantor may merge into with any other Subsidiary that Guarantor, and any Subsidiary Guarantor may merge with any Subsidiary which is not a Subsidiary Guarantor, provided that (vi) immediately after giving effect to any such merger in which such Subsidiary Guarantor may sellis the survivor, transferthe Available Intercompany Investment Amount shall not be less than $1.00, lease or otherwise dispose (ii) with respect to any merger in which such Subsidiary Guarantor is not the survivor, such merger shall be treated as a Disposition for all purposes of its assets to Sections 2.4(c)(i) and 8.6(d);
(d) the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary may merge with any Person that is not a Subsidiary Guarantor may sellSubsidiary, transferprovided that (i) in connection with any such merger involving the Borrower, lease or otherwise dispose of its assets to the Borrower or to another Subsidiaryshall be the survivor thereof, (viiii) with respect to any such merger involving a Subsidiary in which, immediately after giving effect thereto, the surviving
(e) any Subsidiary that is not may make any Disposition permitted by Sections 8.6(c) or (d);
(f) any Subsidiary other than a Subsidiary Guarantor 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
(g) after the consummation of the Initial Public Offering, and (viii) any Person the Borrower may merge into a newly formed corporation incorporated under Delaware law, with such Delaware corporation as the survivor, provided, however, (i) no Default would exist immediately before or after giving effect thereto, (ii) such surviving corporation shall have executed and delivered to the Administrative Agent an assumption agreement in form and substance satisfactory to it pursuant to which such surviving corporation assumes the obligations of the Borrower or any Subsidiary under the Loan Documents, (iii) the surviving corporation executes and delivers to the Administrative Agent such UCC-1 financing statements and other documents as the Administrative Agent shall reasonably request in connection with an Acquisition where the Borrower or such Subsidiary is the surviving entity.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially perfection of the type conducted by security interests granted under the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoCollateral Documents.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not permit any Subsidiary to, (i) merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or (ii) sell, transferlease, lease transfer or otherwise dispose of (in one a single transaction or in a series of transactions) all or substantially all a material portion of its assets, assets or all or substantially all of the stock of any of its Subsidiaries or (in each case, whether now owned or hereafter acquired), or iii) liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto on a pro forma basis, no Default or Event of Default shall have occurred and be continuingoccurred, (iA)(i) the Borrower may merge with a Person in connection with a Permitted Acquisition; provided, that, the Borrower shall be the surviving Person, (ii) a Subsidiary may merge with a Person in connection with a Permitted Acquisition; provided, that, the Subsidiary shall be the surviving Person, or (iii) a Subsidiary may merge with another Subsidiary, so long as a Subsidiary shall be the surviving Person, (B) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor is the surviving entity, (iii) any Subsidiary Guarantor may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transferlease, lease transfer or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (viiC) any Subsidiary that is not a Subsidiary Guarantor 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 (viii) any Person may merge into the Borrower or any Financial Institution Subsidiary may sell loans, investments, or other similar assets in connection with an Acquisition where the ordinary course of its business, provided, that such sale or series of sales do not constitute a sale of all or a material portion of such Financial Institution Subsidiary’s assets, and (D) the Borrower and any Subsidiary may sell any Other Real Estate Owned; provided, further, that, in the case of clauses (C) and (D) hereof, no single sale (or such Subsidiary is series of related sales) shall exceed $200,000,000 of assets (calculated, in the surviving entitycase of loans, by the unpaid principal balance thereof, and, in the case of Other Real Estate Owned or other assets, the greater of (x) the fair market value thereof or (y) the purchase price thereof).
(b) The Borrower will not dispose of any Capital Stock in any of its Financial Institution Subsidiaries, whether by sale, assignment, lease or otherwise, without the prior written consent of the Lender.
(c) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement hereof and businesses reasonably related or complementary theretothereto and any types of businesses that are expressly permitted by any Governmental Authority having jurisdiction over the Borrower and/or any Financial Institutions Subsidiary.
Appears in 1 contract
Sources: Term Loan Agreement (BNC Bancorp)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Subsidiary of its Restricted Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose Dispose of (in one transaction or in a series of transactions) all or substantially all any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries Borrowing Base Properties (or permit any Sponsored Partnership to Dispose of any Attributed Interests included in the Borrowing Base Properties) or the Equity Interests of any Credit Party in any Restricted Subsidiary or any Sponsored Partnership that holds title to any Attributed Interest (in each case, whether now owned or hereafter acquired), or effect, or enter into an agreement to effect, any Hedge Modification, or liquidate or dissolve, except that, the Borrower, any Restricted Subsidiary or any Sponsored Partnership may sell Hydrocarbons produced from its Oil and Gas Interests in the ordinary course of business and, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, :
(i) any Restricted Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, ;
(ii) any Restricted Subsidiary that is not a Subsidiary Guarantor may merge into any other Restricted Subsidiary Guarantor in a transaction in which the Subsidiary Guarantor surviving entity is the surviving entity, a Restricted Subsidiary;
(iii) any Restricted Subsidiary Guarantor or any Sponsored Partnership may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose Dispose of its assets to the Borrower or to another Subsidiary Guarantor, Restricted Subsidiary;
(viiv) any Restricted Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor Sponsored Partnership may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower (or in the case of any Sponsored Partnership the best interest of the holders of the Equity Interests of such Sponsored Partnership) and is not materially disadvantageous to the Lenders;
(v) the Borrower, any Restricted Subsidiary or any Sponsored Partnership may Dispose of equipment and (viii) any Person may merge into related items in the ordinary course of business, that are obsolete or no longer necessary in the business of the Borrower or any of its Subsidiaries or that is being replaced by equipment of comparable value and utility;
(vi) subject to Section 2.11(b) and Section 2.11(c), the Borrower, any Restricted Subsidiary or any Sponsored Partnership may Dispose of Borrowing Base Properties (whether pursuant to a Disposition of all, but not less than all, of the Equity Interests of any Restricted Subsidiary or otherwise) or enter into Hedge Modifications; provided that the Engineered Value (as assigned by the Administrative Agent) of all Borrowing Base Properties Disposed of and the economic effect (as determined by the Administrative Agent) of all Hedge Modifications entered into between Scheduled Redeterminations does not exceed, in connection with an Acquisition where the aggregate for all Credit Parties and the Sponsored Partnerships taken as a whole, ten percent (10%) of the Borrowing Base most recently determined; provided, further, that Borrower shall promptly and in any event within three (3) Business Days thereafter, provide written notice to the Administrative Agent of any such Hedge Modification, setting forth in reasonable detail the terms of such Hedge Modification; and
(vii) so long as (x) no Borrowing Base Deficiency exists or would exist after giving effect to any such Disposition or Hedge Modification, as the case may be, and (y) no Default exists or would exist after giving effect to such Disposition or Hedge Modification, as the case may be, the Borrower, the Restricted Subsidiaries and the Sponsored Partnerships may Dispose of Borrowing Base Properties (whether pursuant to a Disposition of all, but not less than all, of the Equity Interests of any Restricted Subsidiary or otherwise) and enter into Hedge Modifications not otherwise permitted by the foregoing clause (vi); provided that:
(1) the Borrower provides the Administrative Agent and the Lenders with at least fifteen (15) days prior written notice of such Disposition or Hedge Modification, setting forth in reasonable detail the Borrowing Base Properties that are subject to such Disposition or the terms of such Hedge Modification, as the case may be;
(2) the Administrative Agent and the Lenders may request a Special Redetermination of the Borrowing Base in accordance with the procedures and standards set forth in Section 3.03;
(3) (a) with respect to any Disposition of Borrowing Base Properties, the consideration received shall be equal to or greater than the fair market value of the Oil and Gas Interests subject to such Disposition and (b) with respect to any Hedge Modification, the consideration received for such Hedge Modification is greater than or equal to fair market value, in each case, as reasonably determined in good faith by the board of directors of the Borrower and, if requested by the Administrative Agent, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer certifying to that effect;
(4) at least 90% of the consideration received by the Borrower, any Restricted Subsidiary or any Sponsored Partnership in respect of any such Disposition or Hedge Modification is cash or cash equivalents;
(5) the surviving entityBorrower prepays the Loans to the extent required by Sections 2.11(b) and 2.11(c) as a result of such Disposition or Hedge Modification (as determined after giving effect to any Special Redetermination pursuant to clause (2) above), and with respect to any Disposition, uses any remaining Net Cash Proceeds received from such Disposition in accordance with the terms and conditions set forth in Section 2.11(b); and
(6) unless otherwise approved in writing by all of the Lenders, such Disposition by the Credit Parties (whether pursuant to one transaction or a series of related transactions) is not a Disposition of all or substantially all of the Borrowing Base Properties (whether pursuant to a Disposition of all, but not less than all, of the Equity Interests of any Restricted Subsidiary or otherwise).
(b) The Borrower will not, and nor will not it permit any of its Restricted Subsidiaries or any Sponsored Partnership to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will notExcept in connection with the Restructure Transactions and except with respect to KPC Pipeline, and will not permit LLC any Subsidiary totransaction permitted under this same section of the credit agreement governing the Secured Pipeline Loan, merge into merge, dissolve, liquidate, or consolidate with any other Personor into, or permit any other Person to merge into or consolidate with it, or sellconvey, transfer, lease or otherwise dispose Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries assets (in each case, whether now owned or hereafter acquired), ) to or liquidate or dissolve, in favor of any Person; except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing, or Event of Default exists or would result therefrom:
(ia) any Subsidiary Person (other than any Excluded Subsidiary, KPC Pipeline LLC or any of its Subsidiaries) may merge merge, dissolve or liquidate into the Borrower in a transaction in which the Borrower; provided that such Borrower is the surviving entity;
(b) any Subsidiary (other than any Excluded Subsidiary, KPC Pipeline LLC or any of its Subsidiaries) may merge, dissolve or liquidate with (i) a Borrower; provided that such Borrower shall be the continuing or surviving Person, or (ii) any one or more Subsidiaries; provided that when any Wholly-Owned Subsidiary that is not merging with another Subsidiary, a Wholly-Owned Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which shall be the Subsidiary Guarantor is the continuing or surviving entity, Person;
(iiic) any Subsidiary Guarantor (other than any Excluded Subsidiary, KPC Pipeline LLC or any of its Subsidiaries) may merge into any other Subsidiary Guarantor, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease sell all or otherwise dispose substantially all of its assets (upon voluntary liquidation or otherwise), to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary ; provided that is not a Subsidiary Guarantor may liquidate or dissolve if the Borrower determines seller in good faith that such liquidation or dissolution a transaction is in a Wholly-Owned Subsidiary, then the best interests of the Borrower and is not materially disadvantageous to the Lenders, and purchaser must also be a Wholly-Owned Subsidiary;
(viiid) any Person may merge into the Borrower (other than any Excluded Subsidiary, KPC Pipeline LLC or any Subsidiary in connection with an Acquisition where the Borrower of its Subsidiaries or a Borrower) may merge, dissolve or liquidate into any Subsidiary; provided that such Subsidiary is the surviving entity.;
(be) The Borrower will not, and will not permit any Dispositions permitted under Section 7.07; and
(f) any liquidation or dissolution of its Subsidiaries to, engage to any material extent STP in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related or complementary theretoaccordance with applicable Law.
Appears in 1 contract
Fundamental Changes. (a) The Borrower will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Subsidiary Guarantor in a transaction in which the surviving entity is a wholly owned Subsidiary Guarantor and, if any party to such merger is the surviving entitya Subsidiary Loan Party, a Subsidiary Loan Party, (iii) any Subsidiary Guarantor may merge into or consolidate with any other Subsidiary GuarantorPerson in order to effect a Permitted Acquisition, (iv) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor 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, Lenders and (viiiv) any Person asset sale permitted by Section 6.05(i) may merge into be effected through the merger of a Subsidiary of the Borrower or with a third party; provided that any such merger involving a Person that is not a wholly owned Subsidiary in connection with an Acquisition where the Borrower or immediately prior to such Subsidiary is the surviving entitymerger shall not be permitted unless also permitted by Section 6.04.
(b) The Borrower will not, and Holdings will not permit conduct, transact or otherwise engage at any of its Subsidiaries to, engage to any material extent time in any business or business activity, acquire any assets, incur any Indebtedness, or suffer to exist any Liens on its assets (other than businesses substantially Liens permitted by Section 6.02), other than (i) ownership and acquisition of the type conducted Equity Interests in the Borrower, together with activities directly related thereto, (ii) performance of its obligations under and in connection with the Loan Documents, the Merger Agreement and the other agreements contemplated by the Merger Agreement, the Senior Subordinated Debt Documents, the indenture or other documentation governing any Permitted Holdings Debt or other documentation governing any Permitted Holdings Debt (and Refinancing Indebtedness in respect thereof) and the other agreements contemplated hereby and thereby, (iii) actions incidental to the consummation of the Transactions, (iv) actions required by law to maintain its existence, (v) the payment of dividends and taxes, (vi) the issuance of and the performance of obligations in respect of its Equity Interests, (vii) the acquisition of assets that are contributed to the Borrower, (viii) the formation of a single purpose corporation to act as a co-issuer of any Permitted Holdings Debt, and (ix) activities and liabilities incidental to its maintenance and continuance and the ownership of the Borrower and its Subsidiaries and to the foregoing activities. Notwithstanding anything to the contrary contained in herein, (A) Holdings shall at all times own directly 100% of the Equity Interests of the Borrower and (B) Holdings shall not sell, dispose of, ▇▇▇▇▇ ▇ ▇▇▇▇ on or otherwise transfer its Equity Interests in the date of execution of this Agreement Borrower (other than pursuant to the Loan Documents).
(c) Notwithstanding anything herein to the contrary, Holdings, the Borrower and businesses reasonably related or complementary theretoits Subsidiaries may consummate the Acquisition.
Appears in 1 contract
Fundamental Changes. (a) The Borrower No Consolidated Entity will not, and will not 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 sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, continuing (i) any Subsidiary may merge into the Parent Borrower in a transaction in which the Parent Borrower is the surviving entitycorporation, (ii) any Subsidiary that is not a Subsidiary Guarantor may merge into any Wholly-Owned Subsidiary Guarantor in a transaction in which the surviving entity is a Wholly-Owned Subsidiary Guarantor and, if any party to such merger is the surviving entitya Loan Party, is or becomes a Loan Party, (iii) any Subsidiary Guarantor may merge into any (other Subsidiary Guarantor, (ivthan a Loan Party) any Subsidiary that is not a Subsidiary Guarantor may merge into any other Subsidiary that is not a Subsidiary Guarantor, (v) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor, (vi) any Subsidiary that is not a Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (vii) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve if the Parent Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and Parent Borrower, is not materially disadvantageous to the LendersLenders and could not reasonably be expected to have a Material Adverse Effect, and (viiiiv) any Person Foreign Subsidiary may merge into the Borrower or any other Foreign Subsidiary that is a Wholly-Owned Subsidiary in connection with an Acquisition where the Borrower or such a transaction in which a Foreign Subsidiary that is a Wholly-Owned Subsidiary is the surviving entitycorporation, (v) ▇▇▇▇▇▇▇ River Australia, ▇▇▇▇▇▇▇ River China, ▇▇▇▇▇▇▇ River Mexico and ▇▇▇▇▇▇▇ River Proteomics may be sold, liquidated or dissolved and may take any action described in clauses (h) or (i) of 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 dissolution, (vi) any Wholly-Owned Subsidiary may merge into any Person in order to consummate a Permitted Acquisition permitted by Section 6.04(g) so long as after giving effect thereto the Person surviving such merger is a Subsidiary and (vii) any Consolidated Entity may effect the closure of a division in such Consolidated Entity.
(b) The Borrower No Consolidated Entity will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses substantially of the type conducted by the Borrower and its Subsidiaries Consolidated Entities on the date of execution of this Agreement and businesses reasonably related or complementary thereto.
Appears in 1 contract
Sources: Credit Agreement (Charles River Laboratories International Inc)