Fundamental Changes. The Borrower will not, and will not permit any other Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), except that: (i) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04; (ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; (iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04; (iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act; (v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12; (vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and (vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 8 contracts
Sources: Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving PersonPerson and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (Bii) any one or more other Restricted Subsidiaries; provided that (A) when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be and (B) no Domestic Subsidiary may merge with and into a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Foreign Subsidiary;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must either be the Borrower or a Guarantor (and, if the transferor is a Domestic Subsidiary, the transferee must also be a Loan Party, Domestic Subsidiary) or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1A) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory by a supplement to the Administrative Agent, Guaranty confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this AgreementAgreement (and, with respect to such opinion of counsel, otherwise substantially consistent, to the extent reasonably appropriate and applicable, with the opinions delivered with respect to the Borrower on the Closing Date, including as to the enforceability of the applicable Loan Documents against the Successor Borrower, and with such customary and other assumptions and qualifications as may be appropriate); provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that (i) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 Section 6.11, (ii) when any Restricted Subsidiary that is a Loan Party is merging with any other Person, a Loan Party shall be the continuing or surviving Person and 6.12(iii) no Domestic Subsidiary may merge with and into any other Person that is not organized under the Laws of the United States, any state thereof or the District of Columbia except to the extent such merger is an Investment permitted under Section 7.02;
(vif) any the Borrower and the Restricted Subsidiary Subsidiaries may effect consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 8 contracts
Sources: Credit Agreement (West Corp), Credit Agreement (West Corp), Credit Agreement (West Corp)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (A) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction in the United States); provided that the Borrower shall be the continuing or surviving Person, Person or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Party, (ii) any Subsidiary may liquidate or dissolve so long as any related Disposition is permitted by Section 7.05 and (Biii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in in, or Indebtedness of, a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its obligations under the Security Agreement and other applicable Collateral Documents shall apply to the Successor Company’s obligations under the Loan Documents, (E) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counselofficer’s certificate, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan DocumentsAgreement; provided, further, that the Borrower will use commercially reasonable efforts agrees to provide any documentation and other information about the Successor Borrower Company as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActPatriot Act and the Beneficial Ownership Regulation;
(ve) any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary of the Borrower, which together with each of the their Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 and 6.12;Section 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement; provided, further, that, subject to Section 1.08, in the case of any such merger or consolidation involving a Loan Party, no Event of Default has occurred and is continuing or would result therefrom; and
(vif) any Restricted Subsidiary may effect so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its 7.05 or a Restricted Subsidiaries may consummate the AcquisitionPayment permitted pursuant to Section 7.06.
Appears in 7 contracts
Sources: Credit Agreement (Avantor, Inc.), Credit Agreement (Avantor, Inc.), Credit Agreement (Avantor, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(i) any Restricted Subsidiary may merge merge, amalgamate or consolidate with a Borrower (A) including a merger, the Borrowerpurpose of which is to reorganize a Borrower into a new jurisdiction in the United States); provided that such Borrower (as a newly recognized entity) shall be the Borrower continuing or surviving Person and (ii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries); provided that when any Person that is a Loan Party is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or Holdings, the Parent Borrower, Safeway or any Subsidiary may change its legal form if the Parent Borrower determines in good faith that such action is in the best interests interest of the Borrower Albertson’s Group and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, (x) any Borrower shall remain a Borrower and (y) a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Holdings or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor (Bother than Holdings) or a Borrower or (ii) to the extent constituting an Investment, such Investment is must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Sections 10.2 (other than Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower10.2(e)) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.0410.3, respectively;
(ivd) the so long as no Default exists or would result therefrom, a Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the such Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the a Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents Financing Agreements to which the such Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerParty, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its obligations under the Loan Documents, pursuant including the Guarantee, shall continue to an agreement in form and substance reasonably satisfactory apply to the Administrative AgentSuccessor Company’s obligations under the Financing Agreements, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Financing Agreements, (E) if requested by the Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Agent) confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Financing Agreements, and (4F) the Parent Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, provided further that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.0410.2; provided that the continuing or surviving Person shall be the Borrower a Restricted Subsidiary or a Restricted SubsidiaryBorrower, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 Section 9.9 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.0510.5; and
(viig) any merger, dissolution, liquidation, consolidation or Disposition in connection with the Borrower and its Restricted Subsidiaries may consummate the AcquisitionTransactions or in connection with an IPO Reorganization, in each case, shall be permitted.
Appears in 7 contracts
Sources: Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (SSI - AK Holdings, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that, so long as no Event of Default exists or would result therefrom:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the Borrower; provided Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction), provided, that the Borrower shall be the continuing or surviving Person, Person or the surviving Person shall be a Person organized and existing under the laws of the United States or any state thereof and shall expressly assume the obligations of the Borrower pursuant to documents reasonably acceptable to the Administrative Agent or (Bii) any one or more other Restricted Subsidiaries; provided , provided, that when any Subsidiary Loan Party Guarantor is merging or consolidating with another Restricted Subsidiary Subsidiary, (1A) the Guarantor shall be the continuing or surviving Person shall or (B) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary Loan Party or (2) if the continuing or surviving Person which is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04in accordance with Sections 7.02 and 7.03;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the First Lien Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the LendersLenders (it being understood that in the case of any dissolution of a Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Subsidiary that is a Guarantor; and in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must either be the Borrower or a Loan Party, Guarantor or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(vd) any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided provided, that (i) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted its Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;Section 6.12 or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02; and
(vie) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
7.05 (vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionother than Section 7.05(f)(A)).
Appears in 7 contracts
Sources: First Lien Credit Agreement (GMS Inc.), First Lien Credit Agreement (GMS Inc.), First Lien Credit Agreement (GMS Inc.)
Fundamental Changes. The Borrower Holdings will not, and nor will not it permit any other Restricted Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve dissolve, or Dispose of (whichwhether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of Holdings and the Restricted Subsidiaries, for the avoidance taken as a whole, to or in favor of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Loan Party (other than the Borrower) may merge, consolidate or amalgamate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person or (B) one or more other Loan Parties;
(b) any Restricted Subsidiary of Holdings (other than the Borrower) that is not a Loan Party may merge merge, consolidate or consolidate amalgamate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Loan Parties; provided that such Loan Party shall be the continuing or surviving Person or (C) one or more other Restricted Subsidiaries; provided Subsidiaries of Holdings that when any Subsidiary are not Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Parties;
(ii) (Ac) any Restricted Subsidiary that is not a Loan Party may merge (other than the Borrower or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (BParty) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of Holdings and the Borrower and its Restricted Subsidiaries Subsidiaries, taken as a whole, and is not materially disadvantageous to the LendersLenders and does not impair the Guarantee or the Lien of the Collateral Agent in any material respect, taken as a whole;
(iiii) any Restricted Subsidiary Loan Party may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a any other Loan Party, then Party and (Aii) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a any Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 may make a Disposition of all or substantially all of its assets (Cupon voluntary liquidation or otherwise) to the extent constituting a Disposition to a any Loan Party or any other Restricted Subsidiary that is not a Loan Party;
(e) Holdings may merge, amalgamate or consolidate with any other Person; provided that (A) Holdings shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such Disposition merger or consolidation is for fair market value not Holdings (as determined any such Person, the “Successor Holdings”), (1) such Successor Holdings shall be an entity organized or existing under the laws of the United States, any State thereof or the District of Columbia, (2) such Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in good faith by form and substance reasonably satisfactory to the Administrative Agents, (3) each Loan Party other than the Borrower, unless it is the other party to such merger, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agents, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to such Successor Holdings’ obligations under this Agreement and the other Loan Documents and (4) and any promissory note Holdings shall have delivered to the Administrative Agents a certificate of a Responsible Officer, stating that such merger, amalgamation or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary consolidation complies with this Agreement; provided, further, that (x) if such Person is not a Loan Party Party, no Event of Default exists after giving effect to such merger, amalgamation or consolidation and (y) if the foregoing requirements are satisfied, such Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement and the other Loan Documents; provided, further, that Holdings agrees to provide any documentation and other information about such Successor Holdings as shall have been reasonably requested in accordance with Section 7.04writing by any Lender through the Applicable Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA Patriot Act;
(ivf) the Borrower may merge merge, amalgamate or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any State thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative AgentAgents, (3) each Loan Party other than the Borrower, unless it is the other party to such merger merger, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative AgentAgents, that its Guarantee of of, and grant of any Liens as security for for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement and the other Loan Documents and (4) the Borrower shall have delivered to the Administrative Agent Agents a certificate of a Responsible Officer and an opinion of counselOfficer, each stating that such merger merger, amalgamation or consolidation complies with this Agreement; provided, further, that (yx) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist exists after giving effect to such merger merger, amalgamation or consolidation and (zy) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Applicable Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Patriot Act;
(vi) any Restricted Subsidiary Loan Party (other than Holdings or the Borrower) may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.046.04 (other than Section 6.04(u)); provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiaryLoan Party, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 5.13 and 6.12;
5.14, and (viii) any Restricted Subsidiary that is not a Loan Party may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 6.04 (other than Section 6.04(u)); provided that the continuing or surviving Person shall be a Restricted Subsidiary, which shall have complied with the requirements of Sections 5.13 and 5.14;
(h) [reserved];
(i) Holdings and its Subsidiaries may undertake or consummate any Tax Restructuring; and
(j) any Restricted Subsidiary (other than Holdings or the Borrower) may effect a merger, dissolution, liquidation consolidation or amalgamation to (1) effect a Disposition permitted pursuant to Section 7.05; and
6.05 (viiother than Section 6.05(e)) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionor (2) an Investment permitted pursuant to Section 6.04 (other than Section 6.04(u)).
Appears in 7 contracts
Sources: Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Holdings Inc.), Credit Agreement (Koppers Holdings Inc.)
Fundamental Changes. The Borrower will notNone of the Covenant Parties or any of their Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other Person to merge into or consolidate with it, or liquidate or dissolve (which, for than as part of the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formTransaction), except that:
(ia) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with (Ai) any Borrower (including a merger, the Borrowerpurpose of which is to reorganize such Borrower into a new jurisdiction); provided that the such Borrower shall be the continuing or surviving Person, Person or (Bii) any Covenant Party or one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary (other than a Covenant Party) may liquidate or dissolve or change its legal form if the Borrower ▇▇▇▇▇▇▇ determines in good faith that such action is in the best interests interest of the Borrower ▇▇▇▇▇▇▇ and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Covenant Party or Restricted Subsidiary (other than a Borrower) may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower a Covenant Party or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower7.02(e)) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;7.03, respectively; and
(ivd) the so long as no Default exists or would result therefrom, any Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the such Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the such Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof (or, in the case of the Dutch Borrower, an entity organized or existing under the laws of The Netherlands), (2B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, Agent (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor BorrowerCompany’s obligations under this the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (4E) each mortgagor of a mortgaged property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, and (F) such Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan DocumentsAgreement; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;and
(ve) so long as no Default exists or would result therefrom, any Covenant Party or any Restricted Subsidiary (other than a Borrower) may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower a Covenant Party or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;Section 6.11; and
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 7 contracts
Sources: Credit Agreement (Nielsen Holdings PLC), Credit Agreement (Nielsen Holdings N.V.), Credit Agreement (Nielsen Holdings N.V.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the Borrower; , provided that the Borrower shall be the continuing or surviving Person, or (Bii) any one or more other Restricted Subsidiaries; , provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary, such Loan Party that is a Subsidiary (1) of the Ultimate Parent shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Party, and (ii) any Subsidiary of the Borrower may liquidate or dissolve and, any Restricted Subsidiary may change its legal form, in each case, only to the extent permitted by the Indenture Documentation and only so long as (A) the Lien on or security interest in any Collateral held by it under the Loan Documents shall remain in effect to the same extent as immediately prior to such change, and (B) with respect to any change in legal form, the Guarantee of the Obligations by such Restricted Subsidiary shall remain in effect to the same extent as immediately prior to such change;
(c) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party that is a Subsidiary of the Ultimate Parent or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or 7.03 (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Partyother than Section 7.02 and Section 7.03(f)), such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Actcorporation;
(ve) any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.03 (other than Section 7.03(f)); provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.11;
(vif) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and7.05 (other than Section 7.05(e)), may be effected;
(viig) a merger or consolidation of the Intermediate Parent into Ultimate Parent or Borrower, in each case, only to the extent permitted by the Indenture Documentation and only so long as (i) the Borrower Lien on or security interest in any Collateral held by it under the Loan Documents shall remain in effect to the same extent as immediately prior to such change, and its Restricted Subsidiaries (ii) with respect to any change in legal form, the Guarantee of the Obligations by such Person shall remain in effect to the same extent as immediately prior to such change;
(h) so long as the Mission Credit Agreement has not been terminated, the Mission Entities may consummate enter into transactions permitted under the Acquisitionterms of Section 7.04 of the Mission Credit Agreement.
Appears in 6 contracts
Sources: Credit Agreement (Nexstar Broadcasting Group Inc), Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Fundamental Changes. The Borrower will not, and will not permit any other Restricted Subsidiary to, merge Merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate Dispose of (whether in one transaction or dissolve in a series of transactions) all or substantially all of the assets of the Borrowers and the Restricted Subsidiaries on a consolidated basis, taken as a whole, to any other Person, except that, so long as no Default exists or would result therefrom:
(which, for the avoidance of doubt, shall not restrict the a) Any Borrower or any Restricted Subsidiary from changing its organizational form)may merge with or acquire another Person, except that:through a stock, asset or any other similar transaction, which is in the business of specialty chemicals or any related business and related equipment (or any business reasonably ancillary or complementary thereto) if (i) such Borrower or such Restricted Subsidiary is the surviving entity, (ii) such acquisition is friendly and is done with the recommendation of the acquiree’s board of directors or similar governing body and (iii) such acquisition constitutes a Permitted Acquisition;
(b) any Restricted Subsidiary may merge with a Loan Party or a Wholly-Owned Restricted Subsidiary if (i) such Loan Party or such Wholly-Owned Restricted Subsidiary, as the case may be, is the surviving entity of such merger (provided that, if such merger involves (x) a Subsidiary Guarantor, the surviving entity of such merger shall be a Subsidiary Guarantor and (y) any Borrower, the surviving entity of such merger shall be the Borrower) and (ii) immediately after giving effect to such merger, no Default shall have occurred or be continuing;
(c) ESI or any of its Subsidiaries may enter a Permitted Intercompany Transaction;
(d) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.048.05 (other than Investments permitted pursuant to clause (f) of the definition of “Permitted Investments”); provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary (and, which together with each of if such merger or consolidation involves a Borrower, the Restricted Subsidiaries, continuing or surviving Person shall be such Borrower) and shall have complied with the requirements applicable provisions of Sections 6.11 7.12 and 6.127.14 and the Collateral Documents;
(vie) any Restricted Immaterial Subsidiary may effect a merger, dissolution, liquidation consolidation be liquidated or amalgamation to effect a Disposition permitted pursuant to Section 7.05dissolved; and
(viif) ESI may effect the Borrower Arysta Sale. For the avoidance of doubt, it is understood and its Restricted Subsidiaries agreed that at any time PDH may consummate merge with and/or into ESI or MacDermid (so long as ESI or MacDermid, as the Acquisitioncase may be, is the continuing or surviving Person in such merger) or another Loan Party, as the case may be, and nothing herein shall be deemed to prohibit or otherwise limit such merger.
Appears in 6 contracts
Sources: Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the Borrower; , provided that the Borrower shall be the continuing or surviving Person, or (Bii) any one or more other Restricted Subsidiaries; , provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary, such Loan Party that is a Subsidiary (1) of the Borrower shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Party, and (ii) any Subsidiary of the Borrower may liquidate or dissolve and, any Restricted Subsidiary may change its legal form, in each case, only to the extent permitted by the Indenture Documentation and only so long as (A) the Lien on or security interest in any Collateral held by it under the Loan Documents shall remain in effect to the same extent as immediately prior to such change, and (B) with respect to any change in legal form, the Guarantee of the Obligations by such Restricted Subsidiary shall remain in effect to the same extent as immediately prior to such change;
(c) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party that is a Subsidiary of the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or 7.03 (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Partyother than Section 7.02 and Section 7.03(f)), such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Actcorporation;
(ve) any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.03 (other than Section 7.03(f)); provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.11;
(vif) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 (other than Section 7.05(e)), may be effected;
(g) Intentionally Left Blank; and
(viih) so long as the Borrower and its Restricted Subsidiaries Nexstar Credit Agreement has not been terminated, the Nexstar Entities may consummate enter into transactions permitted under the Acquisitionterms of Section 7.04 of the Nexstar Credit Agreement.
Appears in 6 contracts
Sources: Credit Agreement (Nexstar Broadcasting Group Inc), Credit Agreement (Mission Broadcasting Inc), Credit Agreement (Nexstar Broadcasting Group Inc)
Fundamental Changes. The Borrower Company will not, and nor will not it permit any other Restricted Subsidiary of its Material Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)dissolve, except that:
(x) that any Subsidiary (other than a Receivables Subsidiary) (i) any Restricted Subsidiary may merge into, amalgamate or consolidate with Company in a transaction in which Company is the surviving corporation, (Aii) may merge into, amalgamate or consolidate with any Credit Party in a transaction in which the Borrower; provided surviving entity is or becomes a Credit Party, (iii) that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan PartyCredit Party may merge into, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) amalgamate or consolidate with any Restricted Subsidiary that is not a Loan Credit Party or any Person that becomes a Credit Party simultaneously with or promptly following such merger and (iv) may merge into, amalgamate or consolidate with or into any other Restricted Subsidiary Person that is not in accordance with the terms hereof becomes a Loan Credit Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make connection with a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted SubsidiaryPermitted Acquisition; provided that if the transferor in such a transaction Subsidiary is a Loan Party, then (A) Material Subsidiary the transferee must surviving entity shall be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this AgreementMaterial Subsidiary; provided, further, that if any Person acquired in a Permitted Acquisition is not a Wholly-Owned Domestic Subsidiary, it shall not be required to be a Credit Party, (y) if such Person is not a Loan Partyany Subsidiary may merge into, no Event of Default (or, to amalgamate or consolidate with Target in connection with the extent related to a Permitted Target Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if any Subsidiary may merge into, amalgamate or consolidate into another Person in connection with the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documentsconsummation of a transaction permitted by Section 8.4. No Unrestricted Entity shall enter into any merger or consolidation into or with Company or any of its Subsidiaries; provided, further, provided that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary a Permitted Aerospace JV may merge, amalgamate or consolidate with Company or amalgamate with any other Person Subsidiary in order to effect an Investment permitted pursuant to Section 7.04; provided a transaction that the continuing or surviving Person shall be the Borrower or is a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Permitted Acquisition.
Appears in 6 contracts
Sources: Credit Agreement (Ball Corp), Credit Agreement (Ball Corp), Credit Agreement (Ball Corp)
Fundamental Changes. The Neither the Borrower will notnor any of the Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving PersonPerson and such merger does not result in the Borrower ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than 7.02(e)) or 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;respectively; and
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guaranty shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan DocumentsAgreement; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;and
(ve) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary or the Borrower, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(viig) the Borrower and its Restricted Subsidiaries may consummate Permitted Intercompany Activities, the AcquisitionSpin-Off Transaction, the Timeshare Disposition (individually or in the aggregate) and related transactions.
Appears in 6 contracts
Sources: Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.)
Fundamental Changes. The Borrower will notNeither the Company nor any of the Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person (including, in each case, pursuant to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational forma Division), except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerCompany (including a merger, the purpose of which is to reorganize the Company into a new jurisdiction); provided that the Borrower Company shall be the continuing or surviving PersonPerson and such merger does not result in the Company ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or the Company or any Subsidiary may change its legal form (x) if the Borrower Company determines in good faith that such action is in the best interests interest of the Borrower Company and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than 7.02(e)) or 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Company or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;respectively; and
(ivd) so long as no Default exists or would result therefrom, the Borrower Company may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower Company shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) Company (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower Company under this Agreement and the other Loan Documents to which the Borrower Company is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations Guaranty shall apply to the Successor BorrowerCompany’s obligations under this the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, and (4E) the Borrower Company shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower Company under this Agreement and the other Loan DocumentsAgreement; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;and
(ve) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary or the Company, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(viig) the Borrower Company and its Restricted Subsidiaries may consummate the AcquisitionPermitted Intercompany Activities and related transactions.
Appears in 5 contracts
Sources: Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.)
Fundamental Changes. The Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person; provided, that, notwithstanding the foregoing provisions of this Section 8.04 but subject to the terms of Sections 7.12 and 7.14, (a) the Borrower will notmay merge or consolidate with any of its Subsidiaries, and will not permit provided, that, the Borrower shall be the continuing or surviving Person, (b) any Loan Party (other than the Borrower) may merge or consolidate with any other Restricted Loan Party (other than the Borrower), (c) any Subsidiary tothat is not a Loan Party may be merged or consolidated with or into any Loan Party, provided, that, the continuing or surviving Person shall be such Loan Party or concurrently therewith become a Loan Party, (d) any Subsidiary that is not a Loan Party may be merged or consolidated with or into any other Subsidiary that is not a Loan Party, (e) any Subsidiary may dissolve, liquidate or wind up its affairs at any time, provided, that, such dissolution, liquidation or winding up could not reasonably be expected to have a Material Adverse Effect and all of its assets and business are transferred to a Loan Party or solely in the case of a Subsidiary that is not a Loan Party, another Subsidiary that is not a Loan Party prior to or concurrently with such dissolution, liquidation or winding up, (f) in connection with any Permitted Acquisition or other Investment permitted under Section 8.02 (other than by reference to this Section 8.04 (or any sub-clause hereof)) the Borrower or any Subsidiary may merge into or consolidate with any other Person, Person or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), except that:
so long as (i) the Person surviving such merger with any Restricted Subsidiary may merge shall be a direct or consolidate with indirect Wholly Owned Subsidiary (Aand, if such Subsidiary is a Domestic Subsidiary, a Wholly Owned Domestic Subsidiary), (ii) in the Borrower; provided that case of any such merger to which the Borrower shall be is a party, the continuing or Borrower is the surviving Person, or and (Biii) in the case of any one or more other Restricted Subsidiaries; provided that when any Subsidiary such merger to which a Loan Party (other than the Borrower) is merging or consolidating with another Restricted Subsidiary (1) a party, the continuing or surviving Person shall be a Subsidiary is such Loan Party or (2) if the continuing or surviving Person is not concurrently therewith becomes a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise and (g) in connection with any Disposition permitted under Section 7.04;
8.05 (ii) other than by reference to this Section 8.04 (Aor any sub-clause hereof)) any Restricted Subsidiary that is not a Loan Party may merge into or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order or permit any other Person to effect an Investment permitted pursuant merge into or consolidate with it to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionsuch Disposition.
Appears in 5 contracts
Sources: Credit Agreement (Societal CDMO, Inc.), Credit Agreement (Societal CDMO, Inc.), Credit Agreement (Recro Pharma, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving PersonPerson and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (Bii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form (subject, in the case of any change of legal form, to any such Subsidiary that is a Guarantor remaining a Guarantor) if the Borrower Holdings determines in good faith that such action is in the best interests of the Borrower Holdings and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor or the Borrower, then (Ai) the transferee must either be the Borrower or a Loan Party, Guarantor or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower7.02(e)) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.047.03, respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant by a supplement to an agreement the Guaranty in form and substance reasonably satisfactory to the Administrative Agent, Agent confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement in form and substance reasonably satisfactory to the Administrative Agent confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage in form and substance reasonably satisfactory to the Administrative Agent confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under this Agreement, (F) immediately after giving effect to such merger or consolidation, the Successor Company and the Restricted Subsidiaries shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.11, such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such merger or consolidation had been consummated as of the first day of the fiscal period covered thereby and evidenced by a certificate from the Chief Financial Officer of the Successor Company demonstrating such compliance calculation in reasonable detail, and (4G) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, provided further that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that (i) if such Restricted Subsidiary is a Loan Party, a Loan Party shall be the continuing or surviving Person, and (ii) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.11;
(vif) any the Borrower and the Restricted Subsidiary Subsidiaries may effect consummate the Original Closing Date Merger;
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05;
(h) so long as no Default exists or would result therefrom, Holdings may create a new intermediate holding company (“New Intermediate Holdings”) and transfer the stock of the Borrower to it; provided that (i) New Intermediate Holdings shall expressly assume all the obligations of Holdings under this Agreement, the Security Agreement, the Guaranty and the other Loan Documents to which Holdings is a party (the “Assumed Documents”) by executing and delivering a Joinder Agreement and taking all actions to continue perfection in the security interest in the assets of Holdings, and (ii) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that (A) the Secured Parties continue to have a perfected security interest in all of the Collateral, including the stock of the Borrower, (B) each of the Assumed Documents is a legal, valid and binding obligation of New Intermediate Holdings, enforceable against New Intermediate Holdings in accordance with its terms (subject to customary assumptions and qualifications) and (C) solely with respect to the certificate of a Responsible Officer, Holdings, the Borrower and the other Loan Parties taken as a whole are Solvent and no Default under any of the Loan Documents has occurred and is continuing; provided further, that if the foregoing are satisfied, New Intermediate Holdings will succeed to, and be substituted for, Holdings under the Assumed Documents and Holdings shall be automatically and unconditionally released from its obligations under the Assumed Documents; and
(viii) the Borrower and its Restricted Subsidiaries Aspen Acquisition may consummate the Acquisitionbe consummated.
Appears in 5 contracts
Sources: Fourth Amendment Agreement (CRC Health CORP), Credit Agreement (CRC Health CORP), Third Amendment Agreement (CRC Health CORP)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary toamalgamate, merge into or dissolve, liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary other than the Borrower may merge or consolidate amalgamate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; Subsidiaries (provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating amalgamating with another Restricted Subsidiary (1) the Subsidiary, a Loan Party shall be a continuing or surviving Person Person, as applicable, or the resulting entity shall be succeed as a Subsidiary Loan Party or (2) if matter of law to all of the continuing or surviving Person is not a Subsidiary Obligations of such Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04);
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Party, (ii) (A) any Restricted Subsidiary may liquidate, dissolve or wind up, and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form form, in each case, if (x) the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders and (y) in the case of any Loan Party, the Collateral Agent’s continuing security interest in such Loan Party’s property or assets is not adversely affected and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (Ax) the transferee must be a Loan Party, Party or (By) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party7.02 and Section 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate amalgamate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) the Successor Company shall cause such amendments, supplements or other instruments to be executed, delivered, filed and recorded (and deliver a copy of same to the Administrative Agent and Collateral Agent) in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Collateral Agent on the Collateral owned by or transferred to the Successor Company, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the UCC of the relevant states, (D) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreement and the Loan Documents, (4E) each Guarantor, unless it is the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect other party to such merger or consolidation consolidation, shall have by a supplement to the Security Agreement and (z) if the foregoing requirements are satisfied, other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower will succeed to, and be substituted for, Company’s obligations under the Borrower under this Agreement and the other Loan Documents; provided, further, that (F) the Borrower will use commercially reasonable efforts to provide any Administrative Agent shall have received all documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent Company that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of without limitation the USA PATRIOT ActAct and (G) at the time of such merger or consolidation, shall be in pro forma compliance with the Financial Covenant; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement;
(ve) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.10;
(vif) any Restricted Subsidiary the Transactions and the Spin-Off may effect be consummated;
(g) so long as no Event of Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation winding up, liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
, may be effected (viiother than pursuant to Section 7.05(e) and other than a Disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries may consummate Subsidiaries); and
(h) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, in each case, by and among the AcquisitionBorrower and/or its Restricted Subsidiaries, the purpose of which is to effect the Reorganization.
Appears in 5 contracts
Sources: Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Hotels & Resorts, Inc.)
Fundamental Changes. The Borrower will not, and will not permit any other Restricted Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (whichincluding, for the avoidance of doubtin each case, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formpursuant to a Division), except that:
(ia) any Restricted Subsidiary may merge merge, consolidate or consolidate amalgamate with (Ax) the Borrower; provided that the Borrower shall be the continuing or surviving Person, Person or (By) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging merging, consolidating or consolidating amalgamating with another Restricted Subsidiary either (1A) the continuing or surviving Person shall be a Subsidiary Loan Party or (2B) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.046.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bb) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted must be an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.046.04;
(ivd) the Borrower may merge merge, amalgamate or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the a Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2) the a Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of of, and grant of any Liens as security for for, the Secured Obligations shall apply to the a Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation complies with this Agreement; provided, further, that (yx) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist exists after giving effect to such merger merger, amalgamation or consolidation and (zy) if the foregoing requirements are satisfied, the a Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will agrees to use commercially reasonable efforts to provide any documentation and other information about the such Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActPatriot Act and the Beneficial Ownership Regulation;
(ve) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.046.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 5.11 and 6.12;5.12; and
(vif) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition6.05.
Appears in 5 contracts
Sources: Credit Agreement (EverCommerce Inc.), Credit Agreement (EverCommerce Inc.), Credit Agreement (EverCommerce Inc.)
Fundamental Changes. The Borrower will not(a) Merge, and will not permit any other Restricted Subsidiary toDivide, merge into or consolidate with any other Personcombine, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), except that:
(i) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary Person, or liquidate (or suffer any liquidation), wind up its affairs, or dissolve itself (or suffer any dissolution), in each case whether in a single transaction or in a series of related transactions, except that is not a Loan Party and so long as no Default or Event of Default then exists or would result therefrom (Bi) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Credit Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge with, or consolidate with (sell, assign, transfer, lease, or Dispose otherwise dispose of all or substantially all of its assets to) , any other PersonCredit Party (including any Borrower), or Divide itself into two or more Credit Parties; provided that that, (A) the if any Borrower shall is party to any such merger, such Borrower must be the continuing or surviving Person or Person; (B) if the Person formed by no Credit Party may sell, assign, transfer, lease, or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition otherwise dispose of all or substantially all of the its assets except to a Borrower’s assets, if the transferee ; and (C) in any Division of such assets) (any such PersonCredit Party, the “Successor Borrower”)Persons resulting from such Division must all become Credit Parties of the same type; upon such Division becoming effective; e.g., (1) all Persons resulting from the Successor Borrower shall be an entity organized or existing under the laws Division of a Covered JurisdictionBorrower must become borrowers, in accordance with Section 9.17; (2ii) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to any Domestic Subsidiary which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Credit Party may merge with, or sell, assign, transfer, lease, or otherwise dispose of all or substantially all of its assets to, any other Domestic Subsidiary which is not a Credit Party, no Event or Divide itself into two or more Domestic Subsidiaries which are not Credit Parties; (iii) any Foreign Subsidiary may merge with, or sell, assign, transfer, lease, or otherwise dispose of Default (or, to the extent related to a Permitted Acquisition all or any Investment not prohibited by Section 7.04, no Specified Event substantially all of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed its assets to, and be substituted forany other wholly owned Foreign Subsidiary or Divide itself into two or more Foreign Subsidiaries; (iv) any Subsidiary may, the Borrower under this Agreement and the other Loan Documentsin accordance with Applicable Law, liquidate or dissolve itself into a Credit Party or another Domestic Subsidiary which is wholly owned by a Credit Party; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Foreign Subsidiary of a Credit Party may mergeliquidate or dissolve itself into another wholly owned Foreign Subsidiary of a Credit Party in accordance with Applicable Law;
(b) Without giving Administrative Agent at least fifteen (15) days prior written notice thereof and complying with all reasonable requirements of Administrative Agent in regard thereto, consolidate including with respect to execution and delivery of all documents, certificates, and information requested by Administrative Agent to maintain the validity, perfection, and priority of the security interests of Administrative Agent in the Collateral, (i) change its legal name or amalgamate the jurisdiction in which it is organized; (ii) change its tax, charter, or other organizational identification number; (iii) change its organizational form (i.e., corporation, limited liability company, partnership, etc.); or (iv) change the location of its chief executive office or other office where material books or records are kept;
(c) Locate its chief executive office or keep its books and records in any jurisdiction other than in a State within the United States of America or the District of Columbia;
(d) Amend, restate, or modify its Organizational Documents in any manner which could be adverse to any Secured Party or could reasonably be expected to have a Material Adverse Effect;
(e) Make any material change in accounting treatment or reporting practices, except as required by GAAP and in accordance with Section 1.2 or change its year-end for accounting purposes from the Fiscal Year ending December 31;
(f) Engage materially in any business other Person than a business in order substantially the same field as the business conducted by Credit Parties and the Subsidiaries on the Closing Date or a business reasonably incidental, related or complementary thereto; or
(g) (i) Authorize, issue or sell any Equity Interests (other than to effect an Investment its parent as existing on the Closing Date), or (ii) grant any options, warrants or other rights to purchase any such Equity interests (other than to such parent), or (iii) in any way change the capitalization of any Credit Party from that set forth on Schedule 8.4, in each case unless and except to the extent permitted pursuant to Section 7.04; provided that the continuing this Agreement or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionother Loan Document.
Appears in 5 contracts
Sources: Credit Agreement (Forbes Energy Services Ltd.), Credit Agreement (Forbes Energy Services Ltd.), Credit Agreement (Forbes Energy Services Ltd.)
Fundamental Changes. The Borrower will notMerge, and will not permit consolidate or enter into any other Restricted Subsidiary to, merge into or consolidate with any other Personsimilar combination with, or permit enter into any Asset Disposition of all or substantially all of its assets (whether in a single transaction or a series of transactions) with, any other Person to merge into or consolidate with itliquidate, or liquidate wind-up or dissolve itself (which, for the avoidance of doubt, shall not restrict the Borrower or suffer any Restricted Subsidiary from changing its organizational formliquidation or dissolution), except thatexcept:
(a) (i) any Restricted Wholly-Owned Subsidiary of the Borrower may merge be merged, amalgamated or consolidate consolidated with or into the Borrower (A) the Borrower; provided that the Borrower shall be the continuing or surviving Personentity), or (Bii) any one Wholly-Owned Subsidiary of the Borrower may be merged, amalgamated or more other Restricted Subsidiaries; consolidated with or into any Subsidiary Guarantor (provided that when any the Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) Guarantor shall be the continuing or surviving Person shall be a Subsidiary Loan Party entity or (2) if simultaneously with such transaction, the continuing or surviving Person is not entity shall become a Subsidiary Loan Party, Guarantor and the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Borrower shall comply with Section 7.04;
8.13 in connection therewith) or (ii) (Aiii) any Restricted Wholly-Owned Subsidiary of the Borrower that is not a Loan Credit Party may merge be merged, amalgamated or consolidate consolidated with or into any other Restricted Pledged Foreign Subsidiary (provided that the Pledged Foreign Subsidiary shall be the continuing or surviving entity or simultaneously with such transaction, the continuing or surviving entity shall become a Pledged Foreign Subsidiary and the Borrower shall comply with Section 8.13 in connection therewith);
(b) (i) any Non-Credit Party that is not a Loan Pledged Foreign Subsidiary may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Pledged Foreign Subsidiary, (ii) any Non-Credit Party that is a Foreign Subsidiary (other than any Pledged Foreign Subsidiary) may be merged, amalgamated or consolidated with or into, or be liquidated into, any other Non-Credit Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Non-Credit Party that is a Domestic Subsidiary may make be merged, amalgamated or consolidated with or into, or be liquidated into, any other Non-Credit Party that is a Disposition Domestic Subsidiary;
(c) any Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation liquidation, dissolution, winding up or otherwise) to the Borrower or another Restricted Subsidiaryany Subsidiary Guarantor; provided that if the transferor in that, with respect to any such a transaction is a Loan disposition by any Non-Credit Party, then (A) the transferee must be a Loan Party, (B) to consideration for such disposition shall not exceed the extent constituting an Investment, fair value of such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04assets;
(ivi) the Borrower any Non-Credit Party that is a Pledged Foreign Subsidiary may merge or consolidate with (or Dispose dispose of all or substantially all of its assets to(upon voluntary liquidation, dissolution, winding up or otherwise) to any other Pledged Foreign Subsidiary, (ii) any Non-Credit Party that is a Foreign Subsidiary (other Personthan any Pledged Foreign Subsidiary) may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any other Non-Credit Party and (iii) any Non-Credit Party that is a Domestic Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any other Non-Credit Party that is a Domestic Subsidiary;
(e) any Wholly-Owned Subsidiary of the Borrower may merge with or into the Person such Wholly-Owned Subsidiary was formed to acquire in connection with any acquisition permitted hereunder (including any Permitted Acquisition permitted pursuant to Section 9.3(g)); provided that (Ai) in the Borrower case of any merger involving a Wholly-Owned Subsidiary that is a Domestic Subsidiary, (x) a Subsidiary Guarantor shall be the continuing or surviving Person entity or (By) if simultaneously with such transaction, the Person formed by continuing or surviving entity shall become a Subsidiary Guarantor and the Borrower shall comply with Section 8.13 in connection therewith and (ii) in the case of any merger involving a Wholly-Owned Subsidiary that is a Pledged Foreign Subsidiary, (x) the Pledged Foreign Subsidiary shall be the continuing or surviving entity or (y) simultaneously with such merger transaction, the continuing or consolidation is not surviving entity shall become a Pledged Foreign Subsidiary and the Borrower shall comply with Section 8.13 in connection therewith; and
(f) any Person may merge into the Borrower or is a Person into which the Borrower has been liquidated (or, any of its Wholly-Owned Subsidiaries in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.049.3(g); provided that (i) in the case of a merger involving the Borrower, a Subsidiary Guarantor or a Pledged Foreign Subsidiary, the continuing or surviving Person shall be the Borrower, such Subsidiary Guarantor or such Pledged Foreign Subsidiary and (ii) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each Wholly-Owned Subsidiary of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the AcquisitionBorrower.
Appears in 5 contracts
Sources: Credit Agreement (SYNAPTICS Inc), First Amendment and Lender Joinder Agreement (SYNAPTICS Inc), Credit Agreement (SYNAPTICS Inc)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted 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 liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), except that:
(a) any Subsidiary may merge, dissolve, liquidate or consolidate with or into (i) any Restricted Subsidiary may merge Borrower (including a merger, the purpose of which is to reorganize such Borrower into a new jurisdiction so long as such Borrower remains organized under the laws of any state of the United States or consolidate with the District of Columbia (A) the Borrower“Jurisdictional Requirements”)); provided that such Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Borrower under the Loan Documents in a manner reasonably acceptable to the Administrative Agent and shall have complied with the requirements of the proviso to clause (b) of the definition of “Borrower” or (ii) any one or more other Subsidiaries; provided that when any Subsidiary that is a Loan Party is merging, dissolving, liquidating or consolidating with or into another Subsidiary, (w) a Loan Party or a Person that upon consummation of such transaction becomes a Loan Party shall be the continuing or surviving Person, or (Bx) to the extent constituting an Investment, such Investment must be an Investment permitted by Section 6.07 and any one or more other Restricted Subsidiaries; provided that when any Subsidiary Debt corresponding to such Investment must be permitted by Section 6.01, (y) to the extent constituting a Disposition, such Disposition must be permitted by Section 6.06 and (z) such Loan Party is merging or consolidating shall have complied with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition any applicable requirements of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.045.13;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, dissolve, liquidate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary (other than the Borrowers) may liquidate or liquidate, dissolve or (if such change does not adversely affect the priority of the Liens securing the Obligations) change its legal form if the Borrower Representative determines in good faith that such action is in the best interests of the applicable Borrower or such Restricted Subsidiary or the business of the Company and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders;taken as a whole; and
(iiic) any Restricted Borrower or any Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.046.07, including a Permitted Acquisition; provided that (x) the continuing or surviving Person shall be the a Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiariesits subsidiaries, shall have complied with the all applicable requirements of Sections 6.11 Section 5.13 and 6.12;
(viy) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition the extent constituting an Investment such Investment must be an Investment permitted pursuant to Section 7.056.07; and
provided, further, that if any Borrower is a party to any transaction effected pursuant to this Section 6.05(c), (vii1) a Borrower shall be the continuing and surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Borrower in a manner reasonably acceptable to the Administrative Agent, (2) the Borrower Jurisdictional Requirements shall be satisfied and its Restricted Subsidiaries may consummate the Acquisition(3) no Event of Default shall have occurred and be continuing or would result therefrom.
Appears in 5 contracts
Sources: Credit Agreement (Rivian Automotive, Inc. / DE), Credit Agreement (Rivian Automotive, Inc. / DE), Credit Agreement (Rivian Automotive, Inc. / DE)
Fundamental Changes. The Neither the Borrower will notnor any of the Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving PersonPerson and such merger does not result in the Borrower ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than Section 7.02(e)) or Section 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guaranty shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary or the Borrower, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(viig) the Borrower and its Restricted Subsidiaries may consummate the AcquisitionPermitted Intercompany Activities.
Appears in 5 contracts
Sources: Credit Agreement (Alight Group, Inc.), Credit Agreement (Alight Inc. / DE), Credit Agreement (Alight Inc. / DE)
Fundamental Changes. The Neither the Borrower will notnor any of the Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other Person to merge into or consolidate with it, or liquidate or dissolve (which, for than as part of the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formOriginal Transactions), except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction in the United States); provided that the Borrower shall be the continuing or surviving Person, Person or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another Restricted Subsidiary (1) a Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower7.02(e)) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.047.03, respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be a Subsidiary or the Borrower or a Restricted SubsidiaryBorrower, which together with each of the Restricted its Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12;Guarantee Requirement; and
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 4 contracts
Sources: Credit Agreement (Summit Materials, LLC), Credit Agreement (Summit Materials, Inc.), Credit Agreement (Summit Materials, Inc.)
Fundamental Changes. The Neither the Parent Borrower will notnor any of the Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerParent Borrower (including a merger, the purpose of which is to reorganize the Parent Borrower into a new jurisdiction); provided that the Parent Borrower shall be the continuing or surviving PersonPerson and such merger does not result in the Parent Borrower ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Party, and (Bii) any Restricted Subsidiary may liquidate or dissolve or the Parent Borrower or any Subsidiary may change its legal form (x) if the Parent Borrower determines in good faith that such action is in the best interests interest of the Parent Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred as a Permitted Investment (other than any disposition or transfer made in reliance on clause (f) of the definition of “Permitted Investments”) or in accordance with Sections 7.05 or 7.06 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Borrower or a Guarantor will remain a Borrower or a Guarantor unless such Borrower or Guarantor is otherwise permitted to cease being a Borrower or a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(ivd) so long as no Default exists or would result therefrom, the Parent Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Parent Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each other Loan Party other than the BorrowerParty, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guaranty (or, pursuant in the case of a Subsidiary Borrower, its obligations hereunder) shall apply to the Successor Company’s obligations under the Loan Documents, (D) each other Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Parent Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Parent Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person or Dispose of all or substantially all of its assets to another Person in order to effect a Permitted Investment or an Investment permitted pursuant to Section 7.04under 7.06; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, shall not be prohibited by this Section 7.04; and
(viig) the Parent Borrower and its Restricted Subsidiaries may consummate (i) the AcquisitionTransactions and (ii) Permitted Intercompany Activities.
Appears in 4 contracts
Sources: Credit Agreement (PF2 SpinCo, Inc.), Credit Agreement (PF2 SpinCo LLC), Credit Agreement (Change Healthcare Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary the Borrower may merge or consolidate with any Restricted Subsidiary (A) including a merger, the Borrowerpurpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving PersonPerson and (y) such merger or consolidation does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition District of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Columbia;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan PartyParty or (ii) to the extent constituting an Investment or giving rise to the incurrence of Indebtedness, such Investment must be a permitted Investment in or such Indebtedness must be Indebtedness of a Restricted Subsidiary in accordance with Sections 7.02 and 7.03, respectively;
(Bd) so long as no Default exists or would result therefrom, the Borrower may merge with any other Person (so long as, to the extent constituting an Investment, such Investment is shall be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person7.02); provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1A) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory by a supplement to the Administrative Agent, Guaranty confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person (i) in order to effect an Investment permitted pursuant to Section 7.047.02 or (ii) for any other purpose; provided that (A) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the applicable requirements of Sections 6.11 Section 6.11; and 6.12;(B) in the case of subclause (ii) only, if (1) the merger or consolidation involves a Guarantor and such Guarantor is not the surviving Person, the surviving Restricted Subsidiary shall expressly assume all the obligations of such Guarantor under this Agreement and the other Loan Documents to which the Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (2) the Total Leverage Ratio for the Test Period immediately preceding such merger or consolidation is less than or equal to 6.00 to 1.00 (calculated on a Pro Forma Basis); and
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 4 contracts
Sources: Credit Agreement (IASIS Healthcare LLC), Amended and Restated Credit Agreement (IASIS Healthcare LLC), Credit Agreement (IASIS Healthcare LLC)
Fundamental Changes. The None of the Borrower will notnor any of the Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge liquidate, consolidate (including by division) with or into or consolidate with any other another Person, consummate a Division as the Dividing Person or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person including by allocation of any assets to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance a series of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)a limited liability company, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving PersonPerson and such merger does not result in the Borrower ceasing to be a limited partnership, corporation or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Section 7.2 (other than Section 7.2(e)) or Section 7.5 (other than Section 7.5(e)) or, in the case of any such business, discontinued, shall be transferred to or otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Subsidiary Guarantor will remain a Subsidiary Guarantor unless such Subsidiary Guarantor is otherwise permitted to cease being a Subsidiary Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartySubsidiary Guarantor, then (Ai) the transferee must be a Loan Party, Subsidiary Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Sections 7.2 (other than Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower7.2(e)) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;7.3, respectively; and
(ivd) so long as no Event of Default exists or would immediately result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guaranty shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (4) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (5) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (46) the Borrower shall have delivered to the Administrative Agent a (w) an officers’ certificate of signed by a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents, (x) if the Successor Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification by the Successor Company to any Lender that has requested such certification and (y) all documentation and other information about the Successor Company under applicable “know your customer” and anti-money-laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan DocumentsAgreement; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;and
(ve) so long as no Event of Default exists or would immediately result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.2; provided that (i) if the merging Restricted Subsidiary in such a transaction is a Subsidiary Guarantor, then the continuing or surviving Person must be a Guarantor or the Borrower or (ii) the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary or the Borrower, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 Section 5.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and[reserved];
(viig) the Borrower and its Restricted Subsidiaries may consummate a merger, dissolution, liquidation, consolidation or Disposition, the Acquisitionpurpose of which is to effect a Disposition permitted pursuant to Section 7.5;
(h) the Borrower and its Subsidiaries may consummate Permitted Intercompany Activities and the WBR Specified Transaction; and
(i) any Restricted Subsidiary that is a limited liability company may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Restricted Subsidiaries at such time, or, with respect to assets not so held by one or more Restricted Subsidiaries, such Division, in the aggregate, would not otherwise result in a Disposition or sale of assets that is not permitted under Section 7.5; provided that, notwithstanding anything to the contrary in this Agreement, any Subsidiary which is a Division Successor resulting from a Division of assets of a Domestic Subsidiary that is not an Excluded Subsidiary may not be deemed to be an Excluded Subsidiary at the time of or in connection with the applicable Division.
Appears in 4 contracts
Sources: Revolving Credit Agreement (WaterBridge Infrastructure LLC), Revolving Credit Agreement (WaterBridge Infrastructure LLC), Revolving Credit Agreement (WaterBridge Infrastructure LLC)
Fundamental Changes. The Borrower (a) No Loan Party will, nor will not, and will not it permit any other of its Restricted Subsidiary Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (whichdissolve, for including by means of a “plan of division” under the avoidance of doubt, shall not restrict the Borrower Delaware Limited Liability Company Act or any Restricted Subsidiary from changing its organizational form)comparable transaction under any similar law, except that:
, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would arise therefrom, (i) any Restricted Subsidiary may merge liquidate, dissolve, consolidate, or consolidate with merge, including by means of a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law into a Loan Party in a transaction in which a Loan Party is the surviving corporation (A) or, in the Borrower; provided that case of a “plan of division” or comparable transaction, the Borrower shall be the continuing or surviving Person, or (B) any one division or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person series thereof, shall be a Restricted Subsidiary and, solely to the extent required under Section 5.12 after giving effect to such transaction, such Person, or such division or series thereof, shall be or become a Loan Party or (2) if within the continuing or surviving Person is not a Subsidiary Loan Partyperiod required by Section 5.12), the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge liquidate, dissolve, consolidate, or consolidate with merge, including by means of a “plan of division” under the Delaware Limited Liability Company Act or any comparable transaction under any similar law, into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with the case of a Disposition “plan of all division” or substantially all of comparable transaction, the Borrower’s assets, if the transferee of such assets) (any such surviving Person, the “Successor Borrower”)or any division or series thereof, (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered JurisdictionRestricted Subsidiary and, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, solely to the extent related to a Permitted Acquisition or any Investment not prohibited by required under Section 7.04, no Specified Event of Default) shall exist 5.12 after giving effect to such merger transaction, such Person, or consolidation such division or series thereof, shall be or become a Loan Party within the period required by Section 5.12), (iii) any Loan Party may merge with or into any other Loan Party, (iv) the Loan Parties and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed totheir Restricted Subsidiaries may dispose of Capital Stock of their respective Restricted Subsidiaries in a transaction permitted by Section 6.05, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any Permitted Acquisitions and other Person in order to effect an Investment Permitted Investments and transactions permitted pursuant to Section 7.04; provided that 6.05 and Section 6.04 may be consummated in the continuing form of a merger or surviving Person shall be the Borrower or a Restricted Subsidiaryconsolidation.
(b) No Loan Party will engage, which together with each to any material extent, in any business other than businesses of the Restricted Subsidiariestype conducted by such Loan Party on the date of execution of this Agreement and businesses reasonably related thereto and those supportive, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a mergercomplementary, dissolution, liquidation consolidation synergistic or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionancillary thereto.
Appears in 4 contracts
Sources: Credit Agreement (Burlington Stores, Inc.), Credit Agreement (Burlington Stores, Inc.), Credit Agreement (Burlington Stores, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), except that:
(i) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary another Person, except that is not a Loan Party and (B) any Restricted Subsidiary may liquidate so long as no Default exists or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Partywould result therefrom, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iva) the Borrower may merge or consolidate with (or Dispose of all or substantially all any of its assets toSubsidiaries provided that the Borrower is the continuing or surviving Person, (b) any Subsidiary may merge or consolidate with any other Person; Subsidiary provided that (A) that, except in the Borrower shall be case of a Permitted Integration Transaction, if a Loan Party is a party to such transaction, the continuing or surviving Person or is a Loan Party, (Bc) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a any Subsidiary may merge with any other Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, Permitted Acquisition provided that (i) if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted fortransaction, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be and (ii) if a Loan Party is a party to such transaction, such Loan Party is the Borrower or a Restricted Subsidiarysurviving Person, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vid) any Restricted Subsidiary that is not a Guarantor (other than Castlewilder) may effect a mergerdissolve, liquidate or wind up its affairs at any time provided that (i) such dissolution, liquidation consolidation or amalgamation winding up, as applicable, could not reasonably be expected to effect have a Disposition permitted pursuant to Section 7.05; and
Material Adverse Effect and (viiii) the Borrower residual assets of such Subsidiary shall be transferred to the parent of such Subsidiary and (e) any Subsidiary that is a Guarantor may dissolve, liquidate or wind up its Restricted Subsidiaries may consummate affairs provided that (i) such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect and (ii) the Acquisitionresidual assets of such Subsidiary shall be transferred to a Loan Party.
Appears in 4 contracts
Sources: Credit Agreement (Cadence Design Systems Inc), Loan Agreement (Cadence Design Systems Inc), Loan Agreement (Cadence Design Systems Inc)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other Person to merge into or consolidate with it, or liquidate or dissolve (which, for than as part of the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formTransactions), except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving Person, Person or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) that is not a Loan Party, the Loan Party shall be the continuing or surviving Person or the surviving entity shall be substantially concurrently become a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party; provided, further, that any security interests granted to the acquisition Administrative Agent for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such Subsidiary Loan Party merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been or will promptly be taken, in each case, as required by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Sections 6.11 or 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (Bii) any Restricted Subsidiary may liquidate or dissolve or and (iii) any Restricted Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Subsidiary Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.04 7.02(e) or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower7.02(h)) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.047.03, respectively;
(ivd) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation; provided, further, that any security interests granted to the Administrative Agent for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation), the Successor Company shall, to the extent subject to the terms hereof, have complied with the requirements of Section 6.11 and all actions required to maintain said perfected status have been or will promptly be taken as required by Section 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement; or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States or any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the such surviving Person’s Subsidiaries that are Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 or 6.13 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any the Borrower and the Restricted Subsidiary Subsidiaries may effect consummate the Acquisition, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(g) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its 7.05 or a Restricted Subsidiaries may consummate the AcquisitionPayment permitted pursuant to Section 7.06.
Appears in 4 contracts
Sources: First Lien Credit Agreement (Jason Industries, Inc.), Second Lien Credit Agreement (Jason Industries, Inc.), Second Lien Credit Agreement (Jason Industries, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit any other Person to merge into Dispose of (whether in one transaction or consolidate with it, in a series of transactions) all or liquidate substantially all of the assets (whether now owned or dissolve (which, for the avoidance hereafter acquired) of doubt, shall not restrict the Borrower and its Restricted Subsidiaries, taken as a whole, to or in favor of any Restricted Subsidiary from changing its organizational form)Person, except that, so long as no Event of Default exists or would result therefrom:
(ia) any Restricted Subsidiary Relevant Party may merge or consolidate with (A) the Borrowerone or more Loan Parties; provided that if the Borrower is a party to such merger or consolidation, it shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary and otherwise a Loan Party is merging or consolidating with another Restricted Subsidiary (1) shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ab) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with the Borrower or into any other Restricted Subsidiary; provided that if the Borrower or a Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate is a party to such merger or dissolve consolidation, it shall be the continuing or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenderssurviving Person;
(iiic) any Restricted Subsidiary Loan Party may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then ;
(Ad) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a any Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to(upon voluntary liquidation or otherwise) any other Person; provided that (A) to the Borrower shall be or any Restricted Subsidiary;
(e) each of the continuing Borrower and any of its Restricted Subsidiaries may merge into or surviving consolidate with any Person other than the Borrower or any of its Subsidiaries; provided, however, that in each case, immediately after giving effect thereto (Bi) if in the Person formed by or surviving case of any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant party, the Borrower is the surviving Person and (ii) in the case of any other merger to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, which any Relevant Party (3) each Loan Party other than the Borrower) is a party, unless it such Relevant Party is the other party surviving Person; and
(f) (i) any Guarantor may dissolve, liquidate or wind up its affairs at any time; provided that all of the assets of such Guarantor are transferred to such merger another Guarantor or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement Borrower and (4ii) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating any Restricted Subsidiary that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan PartyParty may dissolve, no Event of Default (or, to the extent related to a Permitted Acquisition liquidate or wind up its affairs at any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04time; provided that all of the continuing or surviving Person shall be the Borrower assets of such Restricted Subsidiary are transferred to another Restricted Subsidiary or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the AcquisitionLoan Party.
Appears in 4 contracts
Sources: Revolving Credit Agreement (PBF Logistics LP), Revolving Credit Agreement (PBF Energy Co LLC), Revolving Credit Agreement (PBF Energy Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the BorrowerBorrower (including a merger the purpose of which is to reorganize the Borrower in a new State within the United States); provided that the Borrower shall be the continuing or surviving Person, or (Bii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) (A) any Subsidiary may liquidate or dissolve, or (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form form, in each case, if in either case, the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or 7.02 (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrowerother than Section 7.02(f)) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.047.03, respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Actcorporation;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02 (other than Section 7.02(f); provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.11;
(vif) any Restricted Subsidiary the SHL Acquisition may effect be consummated;
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.057.05 (other than Section 7.05(e)), may be effected; and
(viih) any merger, dissolution, liquidation, consolidation with or into another Person, or Disposition arising from any step or transaction set out in the Borrower Structure Memorandum to implement the SHL Acquisition and its Restricted Subsidiaries may consummate the AcquisitionRefinancing.
Appears in 4 contracts
Sources: Credit Agreement (Corporate Executive Board Co), Credit Agreement (Corporate Executive Board Co), Credit Agreement (Corporate Executive Board Co)
Fundamental Changes. The Borrower (a) No Credit Party will, nor will not, and will not it permit any other 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 of (in one transaction or in a series of transactions) any of its assets, or any of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)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 Restricted Subsidiary of the Borrower may liquidate, dissolve, merge or consolidate into the Borrower in a transaction in which the Borrower is the surviving corporation; provided that any merger consideration payable to minority shareholders of any such Subsidiary in connection with any such transaction shall be independently justified as an investment pursuant to Section 11.04(viii); (Aii) (1) any Subsidiary Guarantor may liquidate, dissolve, merge or consolidate into any Subsidiary Guarantor in a transaction in which the surviving entity is a Subsidiary Guarantor, (2) any Subsidiary that is not a Subsidiary Guarantor may liquidate, dissolve, merge or consolidate into any Subsidiary Guarantor in a transaction in which the surviving entity is a Subsidiary Guarantor and (3) any Subsidiary that is not a Subsidiary Guarantor may liquidate, dissolve, merge or consolidate into any other Subsidiary that is not a Subsidiary Guarantor; (iii) any Credit Party or any Subsidiary may sell, transfer, lease or otherwise dispose of (1) its assets to any Credit Party (other than Holdings), (2) Inventory and precious metals to be recovered from spent catalysts in the ordinary course of business, (3) assets constituting property, plant and equipment that are uneconomical, obsolete, worn out or no longer used or useful in its business or constitute surplus and which are disposed of in the ordinary course of business, (4) other assets (other than any disposition of property, plant and equipment as part of a Permitted Sale and Leaseback Transaction) having a market value not to exceed either (x) 5% of Consolidated Total Assets during any Fiscal Year or (y) 15% of Consolidated Total Assets in the aggregate for all periods after the Effective Date, with each determination pursuant to preceding clause (x) or (y) to be made on the date of each sale, transfer, lease or other disposition of assets pursuant to this clause (4) based upon Consolidated Total Assets as shown at the last day of the most recently ended Fiscal Quarter for which financial statements have been (or were required to be) furnished to the Administrative Agent pursuant to Section 10.01(a) or (b) (or prior to any such delivery, as shown on the December 31, 2009 consolidated balance sheet of Holdings delivered pursuant to Section 9.04(a)), as the case may be; provided that (x) no violation of this clause (4) shall occur solely as a result of any reduction in Consolidated Total Assets if at the time the respective disposition of assets occurred such disposition was permitted within the limitations established by this clause (4), (y) each sale, transfer, lease or other disposition of assets pursuant to this clause (4) shall be at fair market value and for consideration at least 75% of which (in the good faith determination of the Borrower) constitutes cash, except that during any Fiscal Year asset dispositions in an aggregate amount not exceeding $100,000,000 may be made at fair market value but without being subject to the cash consideration requirements set forth above, and (5) sales, transfers, leases or other dispositions of assets to one or more Foreign Subsidiaries or Excluded Subsidiaries so long as the aggregate fair market value of all assets so transferred (in the case of goods, net of any cash payments therefor actually received by the respective transferor) pursuant to this clause (5) in any Fiscal Year does not exceed $20,000,000; (iv) any Subsidiary that is not a Subsidiary Guarantor may liquidate or dissolve; (v) the Transaction shall be permitted; (vi) as part of any Acquisition permitted under Section 11.04(viii), any Subsidiary of the Borrower may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it in a transaction in which the survivor is a Wholly-Owned Subsidiary of the Borrower; provided that (x) in the Borrower case of any such merger or consolidation to which a Subsidiary Guarantor is a party, the surviving entity in such merger or consolidation shall be (after giving effect to such transaction) a Subsidiary Guarantor and (y) the continuing or surviving Personaggregate amount of merger consideration shall be justified as an investment pursuant to Section 11.04(viii); (vii) bona fide sales, or transfers and other dispositions in the ordinary course of (A) Permitted Investments, and (B) Investments permitted under clauses (vii), (xii) and (xiii) of Section 11.04; (viii) Holdings, the Borrower and each Subsidiary may make payments and other transactions permitted by Section 11.06; (ix) Holdings, the Borrower and each Subsidiary may lease, sublease, license or sublicense any one property, plant and equipment or more intellectual property in the ordinary course of business, including without limitation the lease of vacant land for farming or for the exploration and production of oil, gas, sulphur and other Restricted Subsidiariesminerals; provided that when (x) Holdings, the Borrower and each Subsidiary may sell or otherwise dispose of delinquent Accounts in the ordinary course of business for purposes of collection only (and not for the purpose of any bulk sale, securitization or financing transaction); (xi) Holdings, the Borrower and each Subsidiary may surrender or waive contractual rights or settle, release or surrender any contract, tort or other litigation claims in the ordinary course of business; (xii) Holdings, the Borrower and each Subsidiary may grant Liens permitted by Section 11.02 of this Agreement; (xiii) Holdings and its Subsidiaries may sell, transfer or otherwise dispose of property, plant and equipment in a Permitted Sale and Leaseback Transaction; (xiv) Holdings and its Subsidiaries may in the ordinary course of business abandon or dispose of intellectual property or other proprietary rights of the Borrower or any Subsidiary Loan Party is merging that are, in the reasonable business judgment of the Borrower or consolidating with another Restricted Subsidiary any Subsidiary, no longer practicable to maintain or useful in the conduct of the business of the Borrower or any Subsidiary; (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (Axv) any Restricted Subsidiary that is not a Loan Credit Party may merge sell, transfer, lease or consolidate with or into otherwise dispose of any of its assets to any other Restricted Subsidiary that is not a Loan Party Credit Party; and (Bxvi) any Restricted Subsidiary CFL and its subsidiaries may liquidate receive from, or dissolve or change its legal form if transfer to, the Borrower determines in good faith that such action is and its Subsidiaries spare parts, equipment or goods in the best interests ordinary course of business consistent with past practices and, in connection therewith, may incur loans deemed to arise as a result of such transfers to them, and may be a lender of loans to the Borrower and its Subsidiaries which arise from time to time as a result of transfers of such assets by them to the Borrower and its Subsidiaries; provided that all Indebtedness of the Borrower and its Restricted Subsidiaries arising as a result of such transfers is incurred under, and is not materially disadvantageous meets the requirements of, Section 11.01(vi)(y). For purposes of this Section 11.03 and the definition of Asset Sale, any issuance of Equity Interests by a Subsidiary of Holdings (to a Person other than Holdings or a Wholly-Owned Subsidiary thereof) which, after giving effect thereto, increases the proportional holdings of such Person in such Subsidiary shall be deemed to be a sale of Equity Interests by Holdings or the respective Subsidiary which directly owns Equity Interests in such Subsidiary. In addition to the Lenders;
requirements contained above, no Credit Party will, nor will it permit any of its Subsidiaries to, sell the Equity Interests in any of its Subsidiaries unless the sale is otherwise permitted above in this Section 11.03 and, in the case of any such sale to any Persons other than Holdings or a Subsidiary, constitutes (iiix) any Restricted Subsidiary may make a Disposition sale or disposition of all Equity Interests owned by Holdings and its Subsidiaries in such Subsidiary or substantially all (y) a sale or disposition of its assets (upon voluntary liquidation or otherwise) Equity Interests in order to convert the Borrower or another Restricted Subsidiaryrespective Subsidiary to a Joint Venture; provided that if in the transferor in such a transaction is a Loan Party, then case of this clause (Ay) the transferee must aggregate fair market value of the Equity Interests of Holdings and its Subsidiaries in the respective Subsidiary being converted into a Joint Venture, immediately before the transaction described in this clause (y) net of any cash consideration actually received by any Credit Party (and not the Subsidiary being converted to a Joint Venture) at the time of, and in connection with, said conversion, shall be a Loan Partydeemed an investment pursuant to Section 11.04(viii) and shall only be permitted if same is allowed in accordance with the requirements thereof. The Net Cash Proceeds of any sale or disposition permitted pursuant to this Section 11.03 shall be applied as, (B) and to the extent constituting an Investmentrequired by, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;5.02.
(ivb) the Borrower may merge or consolidate with (or Dispose of all or substantially all No Credit Party will, nor will it permit any of its assets Subsidiaries to) , engage in any business other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all than businesses of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited type generally conducted by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate on the Acquisitiondate of execution of this Agreement and businesses reasonably related thereto or reasonable extensions or expansions thereof.
Appears in 4 contracts
Sources: Credit Agreement (CF Industries Holdings, Inc.), Bridge Loan Agreement (CF Industries Holdings, Inc.), Credit Agreement (CF Industries Holdings, Inc.)
Fundamental Changes. The Borrower will shall not, and will not nor shall the Borrower permit any other Restricted Subsidiary to, consolidate, amalgamate or merge with or into or consolidate with any other wind up into another Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve or dispose of (which, for whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formTransactions), except that:
(i1) any Restricted Subsidiary may merge or consolidate with the Borrower (A) including a merger, the Borrowerpurpose of which is to reorganize the Borrower into a new jurisdiction); provided that that
(a) the Borrower shall be the continuing or surviving Person, and
(b) such merger or (B) consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States, any one state thereof or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or District of Columbia.
(2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (Aa) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party; (b) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary that is a Loan Party; provided that a Loan Party shall be the continuing or surviving Person; (c) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States will be permitted; and (Bd) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided that in the case of clause (d), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or the definition of “Permitted Investments”;
(iii3) any Restricted Subsidiary may make a Disposition dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv4) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with (or Dispose dispose of all or substantially all of its assets to) any other Person; provided that (Aa) the Borrower shall be the continuing or surviving Person corporation or (Bb) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition disposition of all or substantially all of the Borrower’s assets, if is the transferee of such assets) (any such Person, the a “Successor Borrower”), ):
(1i) the Successor Borrower shall will:
(A) be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia,
(2B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent and the Borrower and
(C) deliver to the Administrative Agent (I) an Officer’s Certificate stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent, ;
(3ii) substantially contemporaneously with such transaction (or at a later date as agreed by the Administrative Agent),
(A) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedwill by a supplement to the Guaranty (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guaranty of the Obligations (including the Successor Borrower’s obligations under this Agreement),
(B) each Loan Party, pursuant unless it is the other party to an agreement such merger or consolidation, will, by a supplement to the Security Agreement (or in another form and substance reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder,
(C) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, will, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent and the Borrower), confirm that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and Agreement;
(4iii) after giving pro forma effect to such incurrence, the Borrower shall have delivered would be permitted to incur at least $1.00 of additional Permitted Ratio Debt pursuant to clause (C)(I) of the definition thereof; and
(iv) to the extent reasonably requested by the Administrative Agent, the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that shall have received at least two (y2) if such Person is not a Loan Party, no Event of Default (or, Business Days prior to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04consummation of such transaction all documentation and other information in respect of the Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) including the USA PATRIOT Act; provided further that if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(v5) [reserved];
(6) any Restricted Subsidiary may merge, merge or consolidate with (or amalgamate with dispose of all or substantially all of its assets to) any other Person in order to effect an a Permitted Investment or other investment permitted pursuant to Section 7.047.05; provided that solely in the case of a merger or consolidation involving a Loan Party, no Event of Default exists or would result therefrom; provided further that the continuing or surviving Person shall will be (a) the Borrower or (b) a Restricted Subsidiary, in each case, which together with each of the its Restricted Subsidiaries, shall will have complied with the applicable requirements of Sections 6.11 and 6.12Section 6.11;
(vi7) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or amalgamation disposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.057.04 or a disposition that does not constitute any Asset Sale (other than a transaction described in clause (b) of the definition of Asset Sale);
(8) the Borrower and any Restricted Subsidiary may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name; and
(vii9) the Borrower Loan Parties and its the Restricted Subsidiaries may consummate the AcquisitionTransactions.
Appears in 4 contracts
Sources: Credit Agreement (Superior Industries International Inc), Credit Agreement (Superior Industries International Inc), Credit Agreement (Superior Industries International Inc)
Fundamental Changes. The Borrower will not, and will not permit any other Restricted Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (whichincluding, for the avoidance of doubtin each case, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formpursuant to a Division), except that:
(i) any Restricted Subsidiary may merge merge, consolidate or consolidate amalgamate with (Ax) the Borrower; provided that the Borrower shall be the continuing or surviving Person, Person or (By) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging merging, consolidating or consolidating amalgamating with another Restricted Subsidiary either (1A) the continuing or surviving Person shall be a Subsidiary Loan Party or (2B) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.046.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form or undertake similar transactions if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted must be an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.046.04;
(iv) the Borrower may merge merge, amalgamate or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of of, and grant of any Liens as security for for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation complies with this Agreement; provided, further, that (yx) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist exists after giving effect to such merger merger, amalgamation or consolidation and (zy) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will agrees to use commercially reasonable efforts to provide any documentation and other information about the such Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActPatriot Act and the Beneficial Ownership Regulation;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.046.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 5.11 and 6.12;5.12; and
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition6.05.
Appears in 4 contracts
Sources: Credit Agreement (Vacasa, Inc.), Credit Agreement (Vacasa, Inc.), Credit Agreement (Vacasa, Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any other Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)dissolve, except that:
(iA) any other Restricted Subsidiary may merge or consolidate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any Restricted Subsidiary may merge with any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.046.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan PartyParty (other than Holdings), (B) to the extent constituting an Investment, such Investment is must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.046.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any State thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of of, and grant of any Liens as security for for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, provided further that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist exists after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, provided further that the Borrower will agrees to use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any the Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of without limitation the USA PATRIOT Patriot Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.046.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 5.11 and 6.125.12 and if the other party to such transaction is not a Loan Party, no Default exists after giving effect to such transaction;
(vi) the Borrower and its Restricted Subsidiaries may consummate the Acquisition; and
(vii) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.056.05; andprovided that if the other party to such transaction is not a Loan Party, no Default exists after giving effect to the transaction.
(viib) The Borrower will not, and will not permit any Restricted Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its the Restricted Subsidiaries may consummate on the AcquisitionEffective Date and businesses reasonably related or ancillary thereto.
Appears in 4 contracts
Sources: First Lien Credit Agreement (NEP Group, Inc.), Second Lien Credit Agreement (NEP Group, Inc.), Second Lien Credit Agreement (NEP Group, Inc.)
Fundamental Changes. The Neither the Borrower will notnor any of the Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving PersonPerson and such merger does not result in the Borrower ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than Section 7.02(e)) or Section 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guaranty shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04Section 7.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary or the Borrower, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section Section 7.05; and
(viig) the Borrower and its Restricted Subsidiaries may consummate the AcquisitionPermitted Intercompany Activities.
Appears in 4 contracts
Sources: Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving PersonPerson and (y) such merger does not result in the Company ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (Bii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form if the Borrower Holdings determines in good faith that such action is in the best interests of the Borrower Holdings and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor or the Borrower, then (Ai) the transferee must either be the Borrower or a Loan Party, Guarantor or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower Company may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower Company shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) Company (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower Company under this Agreement and the other Loan Documents to which the Borrower Company is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedby a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Company’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under this Agreement and (F) the Company shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Company under this Agreement;
(e) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge with any other Person in order to effect an Investment permitted pursuant to Section 7.02; provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11;
(f) the Company and the Restricted Subsidiaries may consummate the Merger;
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(h) so long as no Default exists or would result therefrom (including any Change of Control), Holdings (and any Successor Holding Company, as defined below) may merge with or be liquidated into any direct parent company holding 100% of the outstanding Equity Interests of Holdings; provided that (A) the Person formed by or surviving any such merger or consolidation (if not Holdings) or acquiring the assets of Holdings in any such liquidation (any such Person, the “Successor Holding Company”) shall be an agreement entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof and shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party (including the Holdings Guaranty and all Collateral Documents to which Holdings is a party) pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee (B) after giving effect to any such merger, consolidation or liquidation, Holdings or the Successor Holding Company, as the case may be, shall directly own 100% of and grant the outstanding Equity Interests of any Liens as security for the Company, which shall continue to be pledged to secure the Obligations shall apply to under the Successor Borrower’s obligations under this Agreement Collateral Documents and (4C) the Borrower Company shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of outside counsel, each stating that such merger merger, consolidation or consolidation complies liquidation and any such supplements to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Holding Company will succeed to, and be substituted for, the Borrower Holdings under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the AcquisitionAgreement.
Appears in 4 contracts
Sources: Credit Agreement (Sungard Data Systems Inc), Credit Agreement (Sungard Capital Corp Ii), Credit Agreement (Sungard Capital Corp Ii)
Fundamental Changes. The None of the Borrower will notnor any of the Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person (including, in each case, pursuant to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational forma Delaware LLC Division), except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving PersonPerson and such merger does not result in the Borrower ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than Section 7.02(e)) or Section 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another any other Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or company or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1A) the Successor Borrower shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations Guaranty shall apply to the Successor Borrower’s obligations under this the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under the Loan Documents, (4E) [reserved], and (F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan DocumentsAgreement; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;and
(ve) any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary or the Borrower, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and;
(viig) the Borrower and its Restricted Subsidiaries may effect the formation, dissolution, liquidation or Disposition of any Subsidiary that is a Delaware Divided LLC, provided that upon formation of such Delaware Divided LLC, Holdings has complied with Section 6.11 to the extent applicable; and
(h) the Borrower and its Subsidiaries may consummate Permitted Intercompany Activities. Notwithstanding the Acquisitionforegoing, this Section 7.04 will not apply to the Transactions.
Appears in 4 contracts
Sources: Credit Agreement (Legence Corp.), Credit Agreement (Legence Corp.), Credit Agreement (Legence Corp.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary toamalgamate, merge into or dissolve, liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person (including, in each case, pursuant to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational forma Delaware LLC Division), except that:
(ia) any Restricted Subsidiary other than the Borrower may merge or consolidate amalgamate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; Subsidiaries (provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating amalgamating with another Restricted Subsidiary (1) the Subsidiary, a Loan Party shall be a continuing or surviving Person Person, as applicable, or the resulting entity shall be succeed as a Subsidiary Loan Party or (2) if matter of law to all of the continuing or surviving Person is not a Subsidiary Obligations of such Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04);
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Party, (ii) (A) any Restricted Subsidiary may liquidate, dissolve or wind up, and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form form, in each case, if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (Ax) the transferee must be a Loan Party, Party or (By) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party7.02 and Section 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) other than during the Liquidity Testing Period and so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate amalgamate with (or Dispose of all or substantially any other Person or, assign all of its assets to) any other the obligations hereunder to another Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of any such assets) assignment to another Person (any such PersonPerson under this clause (ii), the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) the Successor Company shall cause such amendments, supplements or other instruments to be executed, delivered, filed and recorded (and deliver a copy of same to the Administrative Agent and Collateral Agent) in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Collateral Agent on the Collateral owned by or transferred to the Successor Company, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the UCC of the relevant states, (D) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreement and the Loan Documents, (4E) each Guarantor, unless it is the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect other party to such merger or consolidation consolidation, shall have by a supplement to the Security Agreement and (z) if the foregoing requirements are satisfied, other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower will succeed to, and be substituted for, Company’s obligations under the Borrower under this Agreement and the other Loan Documents; provided, further, that (F) the Borrower will use commercially reasonable efforts to provide any Administrative Agent shall have received all documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent Company that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of without limitation the USA PATRIOT ActAct and (G) at the time of such merger or consolidation, shall be in pro forma compliance with the Financial Covenant; provided, further that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement;
(ve) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.10;
(vif) any Restricted Subsidiary Reorganization may effect be consummated;
(g) so long as no Event of Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation winding up, liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected (other than pursuant to Section 7.05(e)); and
(viih) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, in each case, by and among the Borrower and and/or its Restricted Subsidiaries may consummate Subsidiaries, the Acquisitionpurpose of which is to effect a Reorganization.
Appears in 4 contracts
Sources: Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person Person; provided that, notwithstanding the foregoing provisions of this Section 8.04 but subject to merge into or consolidate with itthe terms of Sections 7.12 and 7.14, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the a) a Domestic Borrower or any Restricted Subsidiary from changing its organizational form), except that:
(i) any Restricted Subsidiary may merge or consolidate with another Domestic Borrower (Aor liquidate and contribute all its assets to another Domestic Borrower) the and a Designated Borrower may merge or consolidate with another Designated Borrower (or liquidate and contribute all its assets to another Designated Borrower; ), (b) a Domestic Borrower may merge or consolidate with any Restricted Subsidiary, and a Restricted Subsidiary may liquidate and contribute all its assets to a Domestic Borrower, provided that the in each case such Domestic Borrower shall be the continuing or surviving Person, or (Bc) any one Loan Party other than a Borrower may merge or more consolidate with (or liquidate and contribute its assets to) any other Loan Party other than a Borrower, (d) any Foreign Subsidiary that is a Restricted Subsidiaries; Subsidiary may be merged or consolidated with or into any Loan Party provided that when any Subsidiary such Loan Party is merging or consolidating with another Restricted Subsidiary (1) shall be the continuing or surviving Person, (e) any Foreign Subsidiary that is a Restricted Subsidiary may be merged or consolidated with or into any other Foreign Subsidiary that is a Restricted Subsidiary, (f) any Borrower or Restricted Subsidiary may merge or consolidate with any other Person shall be so long as (i) the merger or consolidation constitutes a Subsidiary Loan Party or Permitted Acquisition, (2ii) if such merger or consolidation involves a Borrower, such Borrower is the continuing surviving entity, and (iii) if such merger or surviving Person is not consolidation involves a Restricted Subsidiary Loan Party(other than a Borrower), the acquisition of either such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
the surviving entity or the other Person party to such merger or consolidation is the surviving entity and complies with Sections 7.12 and 7.14, (ii) (Ag) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Material Subsidiary may liquidate or dissolve or change its legal form liquidate if the Borrower Representative determines in good faith that such action dissolution or liquidation is in the best interests of the Borrower and its Restricted Subsidiaries Loan Parties and is not materially disadvantageous to the Lenders;
, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, (iiih) to the extent not otherwise permitted under the foregoing clauses, any Restricted Wholly Owned Subsidiary may make a Disposition that has sold, transferred or otherwise disposed of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower permitted under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto no longer conducts any active trade or thereto in form business may be liquidated, wound up and substance reasonably satisfactory to the Administrative Agentdissolved, (3) each Loan Party other than the Borrower, unless it is the other party to such merger so long as no Default or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition has occurred and is continuing or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation would result therefrom and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(viii) the Borrower Loan Parties and its their Restricted Subsidiaries may consummate the Acquisitionmake Dispositions permitted by Section 8.05.
Appears in 4 contracts
Sources: Credit Agreement (Enpro Industries, Inc), Credit Agreement (Enpro Industries, Inc), Credit Agreement (Enpro Industries, Inc)
Fundamental Changes. The Neither the Borrower will notnor any of its respective Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the BorrowerBorrower (including through a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving Person, Person or (Bii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary under this clause (1) a), a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders and any Collateral owned by such Restricted Subsidiary that is a Loan Party remains owned by a Restricted Subsidiary that is a Loan Party following such liquidation;
(iiic) the Borrower or any Restricted Subsidiary may make a Disposition convey, transfer, lease or otherwise dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that that, if the transferor in such a transaction is the Borrower or a Loan PartyGuarantor, then (A) the transferee must be the Borrower or a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04Guarantor;
(ivd) the Borrower or any Restricted Subsidiary may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 6.02 (including any Permitted Investment); provided that (i) in a merger or consolidation involving the Borrower, the continuing or surviving Person shall be the Borrower and (ii) in a merger or consolidation involving a Restricted Subsidiary, the continuing or surviving Person shall be the Restricted Subsidiary, and in each case the Borrower, together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 5.11;
(e) a merger, dissolution, liquidation, consolidation or Asset Disposition, shall be permitted if the purpose of such transaction is to effect an Asset Disposition permitted pursuant to Section 6.04 (or a disposition excluded in the definition of “Asset Disposition”);
(f) [reserved]; and
(g) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other PersonPerson (other than Parent or Holdings) or consummate a division or become a series of entities; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger merger, consolidation, division or consolidation series is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1A) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory by a supplement to the Administrative Agent, Guaranty confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the AcquisitionAgreement.
Appears in 4 contracts
Sources: Credit Agreement (Mattress Firm Group Inc.), Abl Credit Agreement (Mattress Firm Group Inc.), Credit Agreement (Mattress Firm Group Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary toamalgamate, merge into or dissolve, liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate amalgamate with (Ai) the Borrower; Parent Borrower (including a merger or amalgamation the purpose of which is to reorganize the Parent Borrower in a new province within Canada or the conversion from one form or legal entity into another) (provided that the Borrower resulting entity shall be succeed as a matter of law to all of the continuing or surviving PersonObligations of the Parent Borrower), or (Bii) any one or more other Restricted Subsidiaries; Subsidiaries (provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating amalgamating with another Restricted Subsidiary (1) the Subsidiary, a Loan Party shall be a continuing or surviving Person, as applicable, or the resulting entity shall succeed as a matter of law to all of the Obligations of such Loan Party; provided, further, that the Subsidiary Borrower shall not be merged or amalgamated with any Person shall be a Subsidiary Loan Party or (2) if unless the continuing or surviving Person is not the Subsidiary Borrower or a Restricted Subsidiary Loan Party, the acquisition of such Subsidiary (other than a Foreign Subsidiary) that is a Loan Party by such surviving Restricted that becomes the Subsidiary is otherwise permitted under Section 7.04Borrower pursuant to customary documentation) and (iii) in order to consummate a Permitted Tax Restructuring;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) (A) any Restricted Subsidiary may liquidate, dissolve or wind up, or (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form form, in each case, if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders and (iii) either Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Parent Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary (other than the Subsidiary Borrower) may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party7.02 and Section 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) the so long as no Default exists or would result therefrom, each Borrower may merge or consolidate amalgamate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the such Borrower shall be the a continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Actcorporation;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.10; provided, that the Subsidiary Borrower shall not be merged or amalgamated with any Person unless the surviving Person is the Subsidiary Borrower or a Restricted Subsidiary (other than a Foreign Subsidiary) that is a Loan Party that becomes the Subsidiary Borrower pursuant to customary documentation;
(vif) any Restricted Subsidiary the Acquisition may effect be consummated; and
(g) so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation winding up, liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries , may consummate the Acquisitionbe effected.
Appears in 4 contracts
Sources: Credit Agreement (Restaurant Brands International Limited Partnership), Credit Agreement (Burger King Worldwide, Inc.), Credit Agreement (Tim Hortons Inc.)
Fundamental Changes. The Neither the Borrower will notnor any of the Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving PersonPerson and such merger does not result in the Borrower ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than 7.02(e)) or 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 Sections 7.02 and 7.03, respectively; and
(d) so long as no Event of Default exists under Sections 8.01(a), (f) or (Cj) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Partyor would result therefrom, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guaranty shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guarantee and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan DocumentsAgreement; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;and
(ve) any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary or the Borrower, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12;Guarantee Requirement; and
(vif) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition7.05 or an Investment permitted by Section 7.02.
Appears in 4 contracts
Sources: Term Loan B Credit Agreement (Vine Resources Inc.), Term Loan Credit Agreement (Vine Resources Inc.), Term Loan B Credit Agreement (Vine Resources Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge liquidate, consolidate or amalgamate with or into or consolidate with any other another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with or into (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving PersonPerson or the continuing or surviving Person shall expressly assume the obligations of the Borrower under the Loan Documents and (y) such merger or consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia or Canada or any province thereof or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Non-Loan Party is merging with a Loan Party, a Loan Party shall be the continuing or consolidating with another Restricted Subsidiary (1) surviving Person or the continuing or surviving Person shall be become a Subsidiary Loan Party or or, to the extent constituting an Investment, such Investment must be permitted by Section 7.02 (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under other than Section 7.047.02(e));
(iib) (Ai) any Restricted Subsidiary that merger the sole purpose of which is not a to reincorporate, reorganize or continue any Non-Loan Party may merge or consolidate in another jurisdiction, subject to compliance with or into any other Restricted Subsidiary that is not a Loan Party and the requirements of Section 6.12, (Bii) any Restricted Subsidiary may liquidate liquidate, dissolve or dissolve wind-up or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the LendersLenders and (iii) the Borrower or any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person in order to effect a Permitted Acquisition or other Investment permitted by Section 7.02; provided that the surviving entity shall be subject to the requirements of Section 6.12 (to the extent applicable); provided, further, that if any of the transactions contemplated in this clause (b) involve the Borrower, the provisions of Section 7.04(d) applicable to the Borrower shall be satisfied;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation liquidation, dissolution, wind-up or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, Investment in such Investment is transferee as a result of such Disposition must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 7.02 (other than Section 7.02(e)) or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value permitted by Section 7.05 (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with than Section 7.047.05(e));
(ivd) so long as no Event of Default exists or would result therefrom, the Borrower may merge (i) merge, amalgamate or consolidate with (or Dispose of all or substantially all of its assets to) into any other Person; provided that (Ax) the Borrower shall be the continuing or surviving Person corporation or (B) if the Person formed by continuing or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is in a party pursuant to a supplement hereto or thereto in form and substance manner reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered acceptable to the Administrative Agent a certificate (including with respect to the satisfaction of a Responsible Officer customary PATRIOT Act requirements) and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is merger, amalgamation or consolidation does not a Loan Partyresult in the Borrower ceasing to be organized or existing under the Laws of the United States, no Event any state thereof, the District of Default (or, to the extent related to a Permitted Acquisition Columbia or any Investment not prohibited by Section 7.04territory thereof, no Specified Event of Defaultor Canada or any province thereof, or (ii) shall exist after giving effect to such merger or consolidation and (z) change its legal form if the foregoing requirements are satisfied, the Successor Borrower will succeed to, determines that such action is in its best interests and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts makes such change in a manner reasonably acceptable to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” (including with respect to the continued perfection of Liens and anti-money laundering rules and regulations, including Title III satisfaction of the USA customary PATRIOT ActAct requirements);
(ve) the First Amendment Transactions may be consummated;
(f) any Restricted Subsidiary may merge, amalgamate or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.127.02 (other than Section 7.02(e));
(vig) any Restricted Subsidiary may effect [reserved]; and
(h) a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
7.05 (vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionother than Section 7.05(e)).
Appears in 4 contracts
Sources: Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Inc.), Credit Agreement (GFL Environmental Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (A) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving Person, Person or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (Bii) any Restricted Subsidiary may liquidate or dissolve or and (iii) any Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 Sections 7.02 (other than 7.02(e) or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower7.02(m)) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.047.03, respectively;
(ivd) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan DocumentsAgreement; provided, further, that the Borrower will agrees to use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower Company as shall have been reasonably requested in writing by any the Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Patriot Act;
(ve) so long as (in the case of a merger involving a Loan Party) no Event of Default has occurred and is continuing or would result therefrom (limited in connection with a merger involving a Limited Condition Transaction to Defaults or Events of Default pursuant to Sections 8.01(a) and (f) and any other Default or Event of Default that is a condition to the effectiveness of the Limited Condition Transaction), any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary of the Borrower, which together with each of the their Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 and 6.12;Section 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement; and
(vif) any Restricted Subsidiary may effect so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its 7.05 or a Restricted Subsidiaries may consummate the AcquisitionPayment permitted pursuant to Section 7.06.
Appears in 3 contracts
Sources: Credit Agreement (Signify Health, Inc.), Credit Agreement (Signify Health, Inc.), Credit Agreement (Signify Health, Inc.)
Fundamental Changes. The None of the Parent, the Borrower will notnor any of the Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit any other Person to merge into Dispose of (whether in one transaction or consolidate with itin a series of transactions and including by way of, or liquidate as a result of, any Division/Series Transaction) all or dissolve substantially all of its assets (which, for the avoidance whether now owned or hereafter acquired) to or in favor of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerParent (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Parent shall be the continuing or surviving Person and such merger does not result in the Parent ceasing to be a corporation, limited liability company or limited partnership organized under the Laws of the United States, any state thereof or the District of Columbia, (ii) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving PersonPerson and such merger does not result in the Borrower ceasing to be a corporation, limited liability company or limited partnership organized under the Laws of the United States, any state thereof or the District of Columbia or (Biii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating amalgamating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or the Parent, the Borrower or any Subsidiary may change its legal form (x) if the Borrower determines in good faith that such action is in the best interests interest of the Borrower Parent and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than Section 7.02(e)) or Section 7.05 (other than Section 7.05(e)) or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Parent, the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Event of Default exists or would immediately result therefrom, the Parent or the Borrower (as applicable, the “Subject Entity”) may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower Subject Entity shall be the continuing or surviving Person corporation or entity or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) Subject Entity (any such other Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower Subject Entity under this Agreement and the other Loan Documents to which the Borrower Subject Entity is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guaranty shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower Subject Entity shall have delivered to the Administrative Agent a certificate of signed by a Responsible Officer of the Subject Entity and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower Subject Entity under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Event of Default exists or would immediately result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary or the Borrower, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any the Parent, the Borrower and the Restricted Subsidiary Subsidiaries may effect consummate a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05;
(g) the Parent, the Borrower and the Subsidiaries may consummate Permitted Intercompany Activities; and
(viih) the Parent, the Borrower and its Restricted the other Subsidiaries may consummate effect the Acquisitionformation, dissolution, liquidation or Disposition of any Subsidiary pursuant to a Division/Series Transaction, provided that upon formation of such Subsidiary, the Borrower has complied with Section 6.11 to the extent applicable.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (NGL Energy Partners LP), Term Loan Credit Agreement (NGL Energy Partners LP), Term Loan Credit Agreement (NGL Energy Partners LP)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary toamalgamate, merge into or dissolve, liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person (including, in each case, pursuant to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational forma Delaware LLC Division), except that:
(ia) any Restricted Subsidiary other than a Borrower may merge or consolidate amalgamate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; Subsidiaries (provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating amalgamating with another Restricted Subsidiary (1) the Subsidiary, a Loan Party shall be a continuing or surviving Person Person, as applicable, or the resulting entity shall be succeed as a Subsidiary Loan Party or (2) if matter of law to all of the continuing or surviving Person is not a Subsidiary Obligations of such Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04);
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Party, (ii) (A) any Restricted Subsidiary may liquidate, dissolve or wind up, and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form form, in each case, if the Parent Borrower determines in good faith that such action is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders and (iii) a Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Parent Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (Ax) the transferee must be a Loan Party, Party or (By) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party7.02 and Section 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) the so long as no Event of Default exists or would result therefrom, each Borrower may merge or consolidate amalgamate with (any other Person or Dispose of all or substantially assign all of its assets to) any other the obligations hereunder to another Person; provided that (Ai) the such Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the such Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of any such assets) assignment to another Person (any such PersonPerson under this clause (ii), the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) the Successor Company shall cause such amendments, supplements or other instruments to be executed, delivered, filed and recorded (and deliver a copy of same to the Administrative Agent and Collateral Agent) in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Collateral Agent on the Collateral owned by or transferred to the Successor Company, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the UCC of the relevant states, (D) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreement and the Loan Documents, (4E) each Guarantor, unless it is the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect other party to such merger or consolidation consolidation, shall have by a supplement to the Security Agreement and (z) if the foregoing requirements are satisfied, other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower will succeed to, and be substituted for, Company’s obligations under the Borrower under this Agreement and the other Loan Documents; provided, further, that (F) the Borrower will use commercially reasonable efforts to provide any Administrative Agent shall have received all documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent Company that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of without limitation the USA PATRIOT ActAct and (G) at the time of such merger or consolidation, shall be in pro forma compliance with the Financial Covenant; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Borrower under this Agreement;
(ve) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.10;
(vif) any Restricted Subsidiary Reorganization may effect be consummated;
(g) so long as no Event of Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation winding up, liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05, may be effected (other than pursuant to Section 7.05(e)); and
(viih) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, in each case, by and among the Parent Borrower and and/or its Restricted Subsidiaries may consummate Subsidiaries, the Acquisitionpurpose of which is to effect a Reorganization.
Appears in 3 contracts
Sources: Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Abl Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(a) (i) any Restricted Subsidiary may merge or consolidate with any Loan Party (other than a Caribbean Party) (including a merger, the purpose of which is to reorganize such Loan Party into a new jurisdiction); provided that (A) the Borrower; provided that the Borrower such Loan Party shall be the continuing or surviving Person, or (B) if a Borrower is a party to such merger, then such Borrower shall be the continuing and surviving Person and (C) such Loan Party shall be incorporated under the Laws of the United States, any one state thereof or more the District of Columbia or (ii) any Restricted Subsidiary (other Restricted Subsidiariesthan a Loan Party that is a Domestic Subsidiary) may merge with any Caribbean Party (including a merger, the purpose of which is to reorganize such Loan Party into a new jurisdiction); provided that when any Subsidiary Loan (A) such Caribbean Party is merging or consolidating with another Restricted Subsidiary (1) shall be the continuing or surviving Person Person, (B) if a Caribbean Borrower is a party to such merger, then such Caribbean Borrower shall be a Subsidiary Loan Party or (2) if the continuing or and surviving Person is not a Subsidiary Loan Party, and (C) such Caribbean Party shall be incorporated under the acquisition Laws of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04an Approved Caribbean Jurisdiction;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) (A) any Restricted Subsidiary may liquidate or dissolve or (B) any Borrower or any Subsidiary may change its legal form if the if, in each case, such Borrower or Subsidiary determines in good faith that such action is in the best interests of the such Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the a Borrower or another Restricted Subsidiary; provided that (i) if the transferor in such a transaction is a Loan Party which is not a Caribbean Party, then the transferee must be a Loan Party (other than a Caribbean Party), (ii) if the transferor in such a transaction is a Caribbean Party, then the transferee must be a Loan Party and (iii) if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof which is a permitted Investment in a Restricted Subsidiary that is not a Loan Caribbean Party in accordance with Section 7.04Sections 7.02 and 7.03, respectively;
(ivd) the so long as no Default exists or would result therefrom, Holdings and each Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) Holdings or such Borrower, as the Borrower case may be, shall be the continuing or surviving Person entity or (Bii) if the Person formed by or surviving any such merger or consolidation is not Holdings or such Borrower, as the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) case may be (any such Person, the “Successor BorrowerLoan Party”), (1A) the Successor Borrower Loan Party shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (except that, in the case of a Covered merger or consolidation of a Caribbean Borrower and not involving Holdings, the Lead Borrower, any other Borrower which is a Domestic Subsidiary, or any Loan Party which is a Domestic Subsidiary, the Successor Loan Party may be organized in an Approved Caribbean Jurisdiction), (2B) the Successor Borrower Loan Party shall expressly assume all the obligations of Holdings or such Borrower, as the Borrower case may be, under this Agreement and the other Loan Documents to which Holdings or such Borrower, as the Borrower case may be, is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedby a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Loan Party’s obligations under this Agreement, pursuant (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Loan Party’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerLoan Party’s obligations under this Agreement Agreement, and (4F) the Lead Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any other Loan Document comply with this Agreement; provided, further, further that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Loan Party will succeed to, and be substituted for, the Borrower applicable Loan Party under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 and 6.12;to the extent applicable; and
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 3 contracts
Sources: Credit Agreement (Performance Food Group Co), Credit Agreement (Performance Food Group Co), Credit Agreement (Performance Food Group Co)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary toamalgamate, merge into or dissolve, liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the Borrower; Borrower (provided that the Borrower resulting entity shall be succeed as a matter of law to all of the continuing or surviving PersonObligations of the Borrower), or (Bii) any one or more other Restricted Subsidiaries; Subsidiaries (provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating amalgamating with another Restricted Subsidiary (1) the Subsidiary, a Loan Party shall be a continuing or surviving Person Person, as applicable, or the resulting entity shall be succeed as a Subsidiary matter of law to all of the Obligations of such Loan Party (including, without limitation, as the Borrower, as applicable)) and (iii) in order to consummate a Permitted Tax Restructuring;
(b) (i) any Non-Loan Party may merge, amalgamate or (2) if the continuing consolidate with or surviving Person is not a Subsidiary into any other Non-Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge liquidate, dissolve or consolidate with wind up, or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form, in each case, if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries Subsidiaries, and the Administrative Agent reasonably determines it is not materially disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Non-Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party7.02 and Section 7.03, such Disposition is for fair market value (respectively, as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04applicable;
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate amalgamate with (or Dispose of all or substantially all of its assets to) any other Person; provided that Person (A1) in a transaction in which the Borrower shall be is the continuing or surviving Person entity of such transaction or (B2) if in a transaction in which such other Person is the Person formed by surviving or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee continuing entity of such assets) transaction (any such Personperson, the “Successor Borrower”); provided that, in the case of this clause (2), (1i) the such Successor Borrower shall be an entity is organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia; (2ii) the such Successor Borrower shall expressly assume all the obligations Obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, Documents; (3iii) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, Guarantor shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this the Loan Documents; (iv) each Guarantor shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under the Loan Documents; (4v) [reserved]; (vi) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent (or any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have Agent) reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of without limitation the USA PATRIOT ActAct and, to the extent required the Beneficial Ownership Regulation, a Beneficial Ownership Certification and (vii) the Borrower shall have delivered a certificate of a Responsible Officer certifying compliance with the foregoing;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, amalgamate or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Subsidiaries that is a Restricted SubsidiariesSubsidiary, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.10 within the time periods specified thereby;
(vif) any Restricted Subsidiary may effect [reserved]; and
(g) so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation winding up, liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries , may consummate the Acquisitionbe effected.
Appears in 3 contracts
Sources: Credit Agreement (RingCentral, Inc.), Credit Agreement (RingCentral, Inc.), Credit Agreement (RingCentral, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, amalgamate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that, (other than in the case of clause (e)) so long as no Event of Default would result therefrom:
(ia) any Restricted Subsidiary Borrower Party (other than the U.S. Borrower) may merge merge, amalgamate or consolidate with (Ai) the U.S. Borrower (including a merger, the purpose of which is to reorganize the U.S. Borrower into a new jurisdiction in any State of the United States or the District of Columbia); provided that the U.S. Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the U.S. Borrower pursuant to documents reasonably acceptable to the Administrative Agent, (ii) the Parent Borrower; provided that the Parent Borrower or any New Parent Borrower, as described in and subject to the requirements of the definition of “Parent Borrower”, shall be the continuing or surviving Person, or (Biii) any one or more other Restricted SubsidiariesBorrower Parties; provided that when (x) any Borrower Party that is not a Controlled Foreign Subsidiary Loan or a FSHCO may not merge with any Borrower Party that is merging a Controlled Foreign Subsidiary or consolidating with another Restricted a FSHCO if such Controlled Foreign Subsidiary (1) or such FSHCO shall be the continuing or surviving Person and (y) when any Guarantor is merging with another Borrower Party that is not a Loan Party (A) the Guarantor shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person Person, (B) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Borrower Party which is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by in accordance with Sections 7.02 and 7.03, respectively and (C) to the extent constituting a Disposition, such surviving Restricted Subsidiary is otherwise Disposition must be permitted under Section 7.04hereunder;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary Borrower Party (other than a Borrower) may liquidate or dissolve dissolve, or any Borrower or any Borrower Party may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Borrower determines Borrowers determine in good faith that such action is in the best interests interest of the Borrower Holdings and its Restricted Subsidiaries and is not materially disadvantageous to the LendersLenders in any material respect (it being understood that in the case of any dissolution of a Borrower Party that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Borrower Party that is a Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Borrower Party that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary (other than a U.S. Borrower) may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Holdings or another any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must either be a Loan Party, Borrower or a Guarantor in the same jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent and (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to Sections 7.02 and 7.03, respectively; provided, further, that the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the U.S. Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to(upon voluntary liquidation or otherwise) to any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Domestic Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(vd) any Restricted Subsidiary Borrower Party (other than a Borrower) may merge, amalgamate or consolidate with, or amalgamate with dissolve into, any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that (i) the continuing or surviving Person shall be shall, to the Borrower or a Restricted Subsidiaryextent subject to the terms hereof, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 Section 6.12 and 6.12(ii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02 and (iii) to the extent constituting a Disposition, such Disposition must be permitted hereunder;
(vie) [reserved];
(f) any Restricted Subsidiary (other than the U.S. Borrower) may effect a mergermerge, dissolutiondissolve, liquidation consolidation liquidate, amalgamate, consolidate with or amalgamation into another Person in order to effect a Disposition permitted pursuant to Section 7.057.05 (other than Section 7.05(d)(A)); and
(viig) any Investment permitted by Section 7.02 may be structured as a merger, consolidation or amalgamation. Notwithstanding anything to the Borrower contrary herein and (1) subject to the provisions set forth in the definition of “Holdings,” for the avoidance of doubt, Holdings shall be permitted to (a) merge, consolidate or amalgamate with an Affiliate of Holdings or an entity incorporated or organized solely for the purpose of reincorporating or reorganizing Holdings in any jurisdiction permitted pursuant to the definition of “Holdings”, or (b) reorganize or reincorporate itself in in any jurisdiction permitted pursuant to the definition of “Holdings”, in each case, so long as the principal amount of Indebtedness of Holdings and its Restricted Subsidiaries is not increased thereby (unless such increase is permitted by this Agreement) and (2) subject to the provisions set forth in the definition of “Parent Borrower,” for the avoidance of doubt, any merger, conversion, legal continuation, continuation to a foreign jurisdiction or otherwise by Previous Parent Borrower with or into New Parent Borrower and the assumption of all obligations by New Parent Borrower immediately thereafter shall be permitted under this Agreement. The Administrative Agent and the Collateral Agent are hereby authorized to execute and deliver such documents and take such other actions as may consummate be reasonably requested by Holdings to give effect to the Acquisitionsuccessions contemplated hereby (and the Administrative Agent and the Collateral Agent are entitled to rely, without independent investigation on any officer’s certificate delivered to it by Holdings (including as to its authority hereunder) which certificate shall be delivered by the Loan Parties upon request of the Administrative Agent or the Collateral Agent).
Appears in 3 contracts
Sources: Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.), Credit Agreement (Axalta Coating Systems Ltd.)
Fundamental Changes. (a) The Borrower will not, and will not permit any other Restricted 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 liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), except that:
(i) any Restricted Subsidiary other than the Borrower may merge merge, amalgamate or consolidate with or into (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more Restricted Subsidiaries other Restricted Subsidiariesthan the Borrower; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary other than the Borrower (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.046.05;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary other than the Borrower may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the LendersSubsidiaries, taken as a whole;
(iii) any Restricted Subsidiary other than the Borrower may make a Disposition disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an InvestmentInvestment in a Restricted Subsidiary that is not a Loan Party, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.05 or (C) to the extent constituting a Disposition disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.046.05;
(iv) the Borrower may merge merge, amalgamate or consolidate with (or Dispose dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerEntity”), (1) the Successor Borrower Entity shall be an entity organized or existing under the laws of, in the case of a Covered Jurisdictionthe Borrower, the United States, any State thereof or the District of Columbia, (2) the Successor Borrower Entity shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, Borrower unless it is the other party to such merger merger, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Secured Obligations shall apply to the Successor BorrowerEntity’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04Limited Condition Transaction, no Specified Event of Default) shall exist after giving effect to such merger merger, amalgamation or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Entity will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower Entity as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary other than the Borrower may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.046.05; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;Section 5.11; and
(vi) any Restricted Subsidiary other than the Borrower may effect a merger, dissolution, liquidation consolidation or amalgamation (or dispose of all or substantially all of its assets) to effect a Disposition an Asset Sale permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition6.04 or any other disposition not constituting an Asset Sale.
Appears in 3 contracts
Sources: Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary toamalgamate, merge into or dissolve, liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary other than the Borrower may merge or consolidate amalgamate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; Subsidiaries (provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating amalgamating with another Restricted Subsidiary (1) the Subsidiary, a Loan Party shall be a continuing or surviving Person Person, as applicable, or the resulting entity shall be succeed as a Subsidiary Loan Party or (2) if matter of law to all of the continuing or surviving Person is not a Subsidiary Obligations of such Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04);
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Party, (ii) (A) any Restricted Subsidiary may liquidate, dissolve or wind up, and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form form, in each case, if (x) the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders and (y) in the case of any Loan Party, the Collateral Agent’s continuing security interest in such Loan Party’s property or assets is not adversely affected and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (Ax) the transferee must be a Loan Party, Party or (By) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party7.02 and Section 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate amalgamate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) the Successor Company shall cause such amendments, supplements or other instruments to be executed, delivered, filed and recorded (and deliver a copy of same to the Administrative Agent and Collateral Agent) in such jurisdictions as may be required by applicable law to preserve and protect the Lien of the Collateral Agent on the Collateral owned by or transferred to the Successor Company, together with such financing statements as may be required to perfect any security interests in such Collateral which may be perfected by the filing of a financing statement under the UCC of the relevant states, (D) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations Guaranty shall apply to the Successor BorrowerCompany’s obligations under this Agreement and the Loan Documents, (4E) each Guarantor, unless it is the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect other party to such merger or consolidation consolidation, shall have by a supplement to the Security Agreement and (z) if the foregoing requirements are satisfied, other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower will succeed to, and be substituted for, Company’s obligations under the Borrower under this Agreement and the other Loan Documents; provided, further, that (F) the Borrower will use commercially reasonable efforts to provide any Administrative Agent shall have received all documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent Company that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of without limitation the USA PATRIOT ActAct and (G) at the time of such merger or consolidation, shall be in pro forma compliance with the Financial Covenants; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement;
(ve) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.10;
(vif) any Restricted Subsidiary the Transactions may effect be consummated;
(g) so long as no Event of Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation winding up, liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
, may be effected (viiother than pursuant to Section 7.05(e) and other than a Disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries may consummate Subsidiaries); and
(h) so long as no Event of Default exists or would result therefrom, a merger, dissolution, liquidation or consolidation, in each case, by and among the AcquisitionBorrower and/or its Restricted Subsidiaries, the purpose of which is to effect the Reorganization.
Appears in 3 contracts
Sources: Credit Agreement (Travel & Leisure Co.), Credit Agreement (Wyndham Destinations, Inc.), Credit Agreement (Wyndham Destinations, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with or into another Person or Divide any other Person, or permit any other Person Loan Party to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)their Subsidiaries, except that, so long as no Default or Event of Default exists or would result therefrom:
(ia) any Restricted Subsidiary of the Company may merge or consolidate with or liquidate or dissolve into a Loan Party; provided, that, (Ai) the Borrower; provided that Loan Party shall be the continuing or surviving Person, (ii) a Borrower may not merge into the Company and (iii) in the case of any merger of a Borrower and a Subsidiary Guarantor, such Borrower shall be the continuing or surviving Person;
(b) in connection with a Permitted Acquisition, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary of a Loan Party may merge with or into or consolidate with any other Person or permit any other Person to merge with or into or consolidate with it; provided, that, (i) the Person surviving such merger shall be a wholly-owned Subsidiary of a Loan Party and (ii) in the case of any such merger to which any Loan Party is merging or consolidating with another Restricted Subsidiary (1) a party, such Loan Party is the continuing or surviving Person or the surviving Person becomes a Loan Party; provided, further that the Company shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, in the acquisition case of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04any merger with the Company;
(ii) (Ac) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party; provided that, when any wholly-owned Subsidiary is merging with another Subsidiary that is not wholly-owned, the wholly-owned Subsidiary shall be the continuing or surviving Person; and
(Bd) any Restricted Subsidiary Loan Party (other than the Company) may liquidate or dissolve or change its legal form liquidate if the Borrower Agent determines in good faith that such action liquidation or dissolution is in the best interests interest of the Borrower and its Restricted Subsidiaries Loan Parties and is not materially disadvantageous to the Administrative Agent or the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if such Loan Party shall at or before the transferor in time of such a transaction is a Loan Partydissolution or liquidation, then (A) the transferee must be a Loan Party, (B) transfer its assets to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with if such Loan Party was a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition).
Appears in 3 contracts
Sources: Credit Agreement (Roadrunner Transportation Systems, Inc.), Credit Agreement (Roadrunner Transportation Systems, Inc.), Credit Agreement (Roadrunner Transportation Systems, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other Person to merge into or consolidate with it, or liquidate or dissolve (which, for than as part of the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formTransactions), except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) a Borrower (including a merger, the Borrowerpurpose of which is to reorganize such Borrower into a new jurisdiction in the United States, any state thereof or the District of Columbia); provided that the such Borrower shall be the continuing or surviving Person, Person or (Bii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging merging, amalgamating or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if unless the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of Investment made in connection with such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge merging, amalgamating or consolidate consolidating with or into any other Restricted Subsidiary that is not a Non-Loan Party and shall otherwise be a Restricted Payment permitted by Section 7.06 (Bother than Section 7.06(b)(xviii)) or a Permitted Investment;
(b) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Administrative Borrower determines in good faith that such action is in the best interests of the Borrower Borrowers and its the Restricted Subsidiaries and is not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the a Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is a permitted Investment in must be a Restricted Subsidiary that is not Payment permitted by Section 7.06 (other than Section 7.06(b)(xviii)) or a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04Permitted Investment;
(ivd) so long as no Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower may merge merge, dissolve, liquidate or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Parent Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower or is a Person into which the Parent Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) dissolved (any such Person, the “Successor Parent Borrower”), (1A) the Successor Parent Borrower shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger merger, dissolution, liquidation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Parent Borrower’s obligations under this the Loan Documents, (D) each Guarantor, unless it is the other party to such merger, dissolution, liquidation or consolidation, shall have reaffirmed that its obligations under the Security Agreement and other applicable Collateral Documents shall apply to the Successor Parent Borrower's obligations under the Loan Documents, (4E) [reserved], and (F) the Administrative Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this AgreementAgreement and customary legal opinions consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) [reserved];
(f) so long as no Event of Default has occurred and is continuing or would result therefrom (solely in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.06 (other than Section 7.06(b)(xviii)) or a Permitted Investment; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the other Restricted SubsidiariesSubsidiary, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.11;
(vig) the Loan Parties and their Subsidiaries may consummate any Restricted Subsidiary may effect Permitted Reorganization; and
(h) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
7.05 (viiother than Section 7.05(e)) may be consummated. Notwithstanding the Borrower above, in the case of any merger, amalgamation or consolidation where the continuing or surviving Person is a Loan Party or any liquidation into a Loan Party, in each case, in accordance with this Section 7.04, any security interests granted to the Administrative Agent for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and its Restricted Subsidiaries may consummate effect and perfected (to at least the Acquisitionsame extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been or will promptly be taken, in each case, as required by Sections 6.11 and 6.13.
Appears in 3 contracts
Sources: First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, (or permit agree to do any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for of the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formforegoing), except that, so long as no Default or Event of Default shall have occurred and be continuing prior to or immediately after giving effect to any action described below or would result therefrom:
(a) any Subsidiary which is not a Loan Party may merge with (i) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; a Loan Party, provided that the Borrower Loan Party shall be the continuing or surviving Person, or (Bii) any one or more other Restricted Subsidiaries; Subsidiaries which are not Loan Parties, provided that when any wholly-owned Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary, the wholly-owned Subsidiary (1) shall be the continuing or surviving Person shall be Person;
(b) any Subsidiary which is a Loan Party may merge into any Subsidiary which is a Loan Party or (2) if into a Borrower, provided, that, in any merger involving a Borrower, such Borrower shall be the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(c) in connection with a Permitted Acquisition, any Subsidiary of a Loan Party may merge with or into or consolidate with any other Person or permit any other Person to merge with or into or consolidate with it; provided that (i) the Person surviving such merger shall be a wholly-owned Subsidiary of a Loan Party and (ii) in the case of any such merger to which any Loan Party is a party, such Loan Party is the surviving Person;
(Ad) any Restricted Subsidiary CFC that is not a Loan Party may merge or consolidate with or into any other Restricted CFC that is not a Loan Party; and
(e) (i) a Subsidiary of any Borrower that is not a Loan Party (other than any such Subsidiary the Equity Interests of which (or any portion thereof) is subject to a Lien in favor of Administrative Agent) may liquidate, wind up, or dissolve itself, so long as all of the assets of such liquidating or dissolving Subsidiary are transferred to a Subsidiary of a Borrower that is not liquidating or dissolving, (ii) a Loan Party (other than any Borrower) or any of its wholly-owned Subsidiaries may liquidate, wind up, or dissolve itself, so long as all of the assets (including any interest in any Equity Interests) of such liquidating or dissolving Loan Party or Subsidiary are transferred to a Loan Party that is not liquidating or dissolving, or (iii) a Borrower (other than ▇▇▇▇▇ Mart) may liquidate, wind up, or dissolve itself, so long as (A) all of the assets of such liquidating or dissolving Borrower are transferred to another Borrower that is not liquidating or dissolving and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is Administrative Agent shall have received not materially disadvantageous to the Lenders;
less than fifteen (iii15) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee Business Days prior written notice of such assets) (any such Personliquidation, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized dissolution or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and antiwinding-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionup.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (Stein Mart Inc), Credit Agreement (Stein Mart Inc), Credit Agreement (Stein Mart Inc)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that, so long as no Default exists or would result therefrom:
(ia) any Restricted Subsidiary or Controlled JV Subsidiary may merge or consolidate with (Ai) the Borrower; , provided that the Borrower shall be the continuing or surviving Person, or (Bii) any one or more other Restricted Subsidiaries or Controlled JV Subsidiaries; , provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted a Controlled JV Subsidiary, such Subsidiary (1) shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ab) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if Loan Party (other than the transferor in such a transaction is a Loan Party, then Parent);
(Ac) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted any Subsidiary or Controlled JV Subsidiary that is not a Loan Party may dispose of all or substantially all its assets (including any Disposition that is in accordance with Section 7.04 or (Cthe nature of a liquidation) to the extent constituting a Disposition to a Restricted (i) another Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Controlled JV Subsidiary that is not a Loan Party in accordance with Section 7.04;or (ii) to a Loan Party; and
(ivd) any Investment, hotel property or other asset owned by a Subsidiary or JV Subsidiary, or the direct or indirect Equity Interests of any Subsidiary or JV Subsidiary, may be Disposed of; provided, however, that (x) in the case of any such merger or consolidation in which the Parent or the Borrower is a party, the Parent or Borrower, as the case may merge be, shall be the surviving entity, and (b) in no event shall Parent or consolidate with (Borrower dissolve or liquidate or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 3 contracts
Sources: Credit Agreement (Ashford Hospitality Prime, Inc.), Credit Agreement (Ashford Hospitality Prime, Inc.), Credit Agreement (Ashford Hospitality Prime, Inc.)
Fundamental Changes. The Lead Borrower will shall not, and will not nor shall it permit any other Restricted Subsidiary to, merge into or merge, amalgamate, dissolve, liquidate, wind up, consolidate with any other or into another Person, or permit dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate amalgamate with (Ai) any Borrower (including a merger or amalgamation, the Borrowerpurpose of which is to reorganize such Borrower into a new jurisdiction); provided that the such Borrower shall be the continuing or surviving PersonPerson and no Event of Default shall have occurred or resulted therefrom, or (Bii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating amalgamating with another Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or except to the extent otherwise constituting an Investment permitted by SECTION 6.02 (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04other than SECTION 6.02 (e));
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party, (ii) any Loan Party may merge, amalgamate or consolidate with any other Loan Party, provided that if a Borrower is a party thereto, a Borrower shall be the continuing or surviving Person, and (Biii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Lead Borrower determines in good faith that such action is in the best interests of the Lead Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders; provided that with respect to this clause (b)(iii), a certificate of a Responsible Officer shall be delivered to the Administrative Agent at least five (5) Business Days (or within such shorter period as the Administrative Agent shall agree in writing, in its sole discretion) prior to the liquidation, dissolution or change of legal form, together with a reasonably detailed description of the material terms and conditions thereof, stating that the Lead Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement;
(iiic) any Restricted Subsidiary may make a Disposition dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Lead Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a another Loan Party, or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySECTION 6.02 and SECTION 6.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary may merge or amalgamate with any other Person in order to effect a Permitted Investment; provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of SECTION 5.11;
(e) so long as no Event of Default exists or would result therefrom, the Lead Borrower and its Restricted Subsidiaries may consummate a merger, amalgamation, dissolution, winding up, liquidation, consolidation or Disposition, the purpose of which is to effect a Permitted Disposition;
(f) [Reserved]; and
(g) so long as no Event of Default exists or would result therefrom, the Lead Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Lead Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Lead Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Lead Borrower”), (1A) the Successor Lead Borrower shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect on the attachment, perfection or priority of the Liens granted under the Security Documents, (2B) the Successor Lead Borrower shall expressly assume all the obligations of the Lead Borrower under this Agreement and the other Loan Documents to which the Lead Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerBorrower and Facility Guarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Lead Borrower’s obligations under this the Loan Documents, (D) each other Borrower and Facility Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Security Documents confirmed that its obligations thereunder shall apply to the Successor Lead Borrower’s obligations under the Loan Documents, (4E) if requested by the Collateral Agent, each mortgagor of a mortgaged property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that its obligations thereunder shall apply to the Successor Lead Borrower’s obligations under the Loan Documents, (F) the Administrative Agent shall have received such financial information, collateral appraisals and examinations, projections (including Availability projections) and other information (all at the cost and expense of the Lead Borrower) as the Administrative may reasonably request in connection with such transaction, (G) the Administrative Agent, in good faith in the exercise of its Permitted Discretion, shall have approved such transaction and (H) the Lead Borrower shall have delivered to the Administrative Agent a (x) an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Security Document comply with this AgreementAgreement and (y) an updated Borrowing Base Certificate dated as of the date of such merger (after giving effect thereto); provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Lead Borrower will succeed to, and be substituted for, the Lead Borrower under this Agreement Agreement; and the other Loan Documents; provided, further, provided further that the Lead Borrower will agrees to use commercially reasonable efforts to provide any documentation and other information about the Successor Lead Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of without limitation the USA PATRIOT Patriot Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 3 contracts
Sources: Credit Agreement (Gymboree Corp), Credit Agreement (Gymboree Corp), Credit Agreement (Gymboree Corp)
Fundamental Changes. The No Borrower will notand no other Loan Party or Subsidiary of a Borrower or other Loan Party shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, amalgamate, consolidate with any other or into another Person, or permit any other Person to merge into the Disposition (except as permitted under Section 6.05) of all or consolidate with it, substantially all of its assets (whether in one transaction or liquidate or dissolve (which, for the avoidance in a series of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formtransactions), except that, so long as no continuing Default or Event of Default exists and no Material Adverse Change has occurred and no Default, Event of Default or Material Adverse Change would be likely to result therefrom after giving effect thereto:
(a) any Subsidiary (or any other Person) may merge, amalgamate or consolidate with (i) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; provided that the a Borrower shall be the continuing or surviving Person, Person or (Bii) any one or more other Restricted Subsidiaries; provided that (A) when any Guarantor is merging with another Subsidiary that is not a Loan Party is merging the Guarantor shall be the continuing or consolidating with another Restricted Subsidiary (1) surviving Person or the continuing or surviving Person shall become a Guarantor, (B) to the extent constituting an Investment, such Investment must be a Subsidiary Loan Party or Permitted Investment and (2C) if to the continuing or surviving Person is not extent constituting a Subsidiary Loan PartyDisposition, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise Disposition must be permitted under in accordance with Section 7.046.05;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (Bii) any Restricted Subsidiary may liquidate or dissolve or change its legal form dissolve, if the Borrower Representative determines in good faith that such action is in the best interests interest of the Borrower Pubco Guarantor and its Restricted Subsidiaries taken as a whole and is not materially disadvantageous to the Lenders;
Lenders in any material respect, it being understood that in the case of any liquidation or dissolution of a Subsidiary that is a Borrower or a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Subsidiary that is a Borrower or a Guarantor unless such Disposition of assets is permitted hereunder and (iii) any Restricted Designated Real Estate Subsidiary may make dispose of all or substantially all of its assets (whether in one transaction or in a series of transactions);
(c) any Loan Party (other than Pubco Guarantor) or Subsidiary may permit the Disposition of all or substantially all of its assets (upon voluntary liquidation liquidation, dissolution or otherwise) to the Borrower any Loan Party or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyBorrower or a Guarantor, then (Ai) the transferee must either be a Loan Party, Borrower or a Guarantor (Bor the transferee shall become a Guarantor) or (ii) to the extent constituting an Investment, such Investment is a must be permitted Investment in a Restricted Subsidiary that is not a by Section 6.02; and
(d) any Loan Party (other than Pubco Guarantor) or any Subsidiary may merge, amalgamate, consolidate (and in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and case of any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance (other than Pubco Guarantor) or any Subsidiary, dissolve or liquidate) with Section 7.04;
(iv) or into another Person or permit the Borrower may merge or consolidate with (or Dispose Disposition of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.056.05; and
(vii) provided that a Borrower or Loan Party, as applicable shall be the Borrower and its Restricted Subsidiaries may consummate the Acquisitioncontinuing or surviving Person.
Appears in 3 contracts
Sources: Credit Agreement (Lazydays Holdings, Inc.), Credit Agreement (Lazydays Holdings, Inc.), Credit Agreement (Lazydays Holdings, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person Person; provided, that, notwithstanding the foregoing provisions of this Section 7.04 but subject to merge into or consolidate with itthe terms of Sections 6.13 and/or 6.14, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict a) the Borrower or any Restricted Subsidiary from changing its organizational form), except that:
(i) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; any of its Subsidiaries provided that the Borrower shall be the continuing or surviving Personcorporation, or (Bb) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging other than the Borrower may merge or consolidating consolidate with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary any other Loan Party or other than the Borrower, (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (Ac) any Restricted Subsidiary that is not a Loan Party may merge be merged or consolidate consolidated with or into any other Restricted Loan Party provided that the continuing or surviving corporation is such Loan Party (or shall be a Person organized under the Laws of the United Sates and shall become a Loan Party hereunder), (d) any Subsidiary that is not a Loan Party and (B) may be merged or consolidated with or into any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted other Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(ive) the Borrower or any Subsidiary may merge or consolidate with a Target or any Subsidiary of a Target in connection with an Investment permitted pursuant to Section 7.03; provided, that, (i) if the Borrower is a party to such merger or Dispose of all or substantially all of its assets to) any other Person; provided that (A) consolidation, the Borrower shall be the continuing or surviving Person or corporation, and (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it Borrower is the other a party to such merger or consolidation, the continuing or surviving corporation shall have reaffirmedbe a Loan Party (or shall be a Person organized under the Laws of the United Sates and shall become a Loan Party hereunder), pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4f) the Borrower and any Subsidiary may engage in a Permitted Transfer, an Investment permitted by Section 7.03 or make a Restricted Payment permitted by Section 7.06 (in each case other than by reference to this Section 7.04 (or any clause hereof)), and (g) any Subsidiary of the Borrower may be dissolved or liquidated so long as (i) such dissolution or liquidation, as applicable, could not reasonably be expected to have a Material Adverse Effect and (ii) the residual assets of such Subsidiary shall have delivered be transferred to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; its parent company (provided, furtherthat, that (y) if such Person the transferor thereof is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person transferee thereof shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the AcquisitionLoan Party).
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (Houlihan Lokey, Inc.), Credit Agreement (Houlihan Lokey, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or consolidate with any other Personliquidate, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), except that:
(i) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not another Person, or Dispose of (whether in one transaction or in a Loan Party and (Bseries of transactions) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation whether now owned or otherwisehereafter acquired) to or in favor of any Person except:
(a) (x) any Domestic Subsidiary of the Borrower may be merged, consolidated or another Restricted Subsidiary; provided that if the transferor in such a transaction is liquidated with or into a Loan PartyParty (so long as (i) in the case of any such merger, then consolidation or liquidation involving the Borrower, the Borrower is the surviving Person and (Aii) in the transferee must be case of any such other merger, consolidation or liquidation, a Loan PartyParty is the surviving Person or such surviving Person becomes a Loan Party concurrently therewith), (By) to any Domestic Subsidiary of the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary Borrower that is not a Loan Party in accordance may be merged, consolidated or liquidated with Section 7.04 or (C) to into any other Domestic Subsidiary of the extent constituting a Disposition to a Restricted Subsidiary Borrower that is not a Loan Party, such Disposition is for fair market value and (as determined in good faith by the Borrowerz) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Foreign Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) of the Borrower may merge be merged, amalgamated, consolidated or consolidate liquidated with or into (or Dispose of all or substantially all of its assets toi) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations Foreign Subsidiary of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto (in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of case so long as any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered interests granted to the Administrative Agent a certificate for the benefit of a Responsible Officer the Secured Parties in the assets (and an opinion Equity Interests) of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if any such Person subject to any such transaction shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, amalgamation, consolidation or liquidation) and all actions required to maintain said perfected status have been taken or (ii) any Loan Party (so long as such Loan Party is not a Loan Partythe surviving Person);
(b) Any non-operating Restricted Subsidiary of the Borrower with no material assets and no material liabilities may wind up, no Event of Default liquidate or dissolve;
(or, c) Dispositions may be made to the extent related to a Permitted Acquisition or any Investment not prohibited permitted by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger 7.05 (including any mergers or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order consolidations to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05such Dispositions); and
(viii) Any merger or consolidation of an Acquired Entity or Business in accordance with the Borrower terms of the definition thereof pursuant to a Permitted Acquisition, and its Restricted Subsidiaries (ii) Investments may consummate be made to the Acquisitionextent permitted by Section 7.03 (including any mergers or consolidations to effect such Investments).
Appears in 3 contracts
Sources: Refinancing Amendment to Credit Agreement (Ciena Corp), Incremental Joinder and Amendment Agreement (Ciena Corp), Credit Agreement (Ciena Corp)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person (including, in each case, pursuant to merge into or consolidate with it, or liquidate or dissolve (which, for a Division; provided that the avoidance formation of doubt, any Subsidiary that is a Division Successor shall not restrict be deemed to constitute the Borrower or any acquisition of a Restricted Subsidiary from changing its organizational formfor all purposes of this Section 9.4), except that:
(ia) Holdings or any Restricted Subsidiary may merge or consolidate with the Borrower (A) including a merger, the Borrowerpurpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person, (y) such merger or consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States, any state thereof or the District of Columbia and (Bz) in the case of a merger or consolidation of Holdings with and into the Borrower, Holdings shall not be an obligor in respect of any one Qualified Holding Company Debt or more other Restricted Subsidiaries; provided Indebtedness that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Partypermitted to be Indebtedness of the Borrower under this Agreement, shall not be an obligor in respect of any Indebtedness that is not permitted to be Indebtedness of the Borrower under this Agreement, shall have no direct Subsidiaries at the time of such merger or consolidation other than the Borrower and, after giving effect to such merger or consolidation, the acquisition direct parent of such Subsidiary the Borrower shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Party by such surviving Restricted Subsidiary Documents to which Holdings is otherwise permitted under Section 7.04a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is not a Loan Party, (ii) any Restricted Subsidiary may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (Biv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided, in the case of clauses (ii) through (iv) of this paragraph (b), that (A) no Event of Default shall result therefrom, (B) no Change of Control shall result therefrom and (C) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Restricted Subsidiary that is a Guarantor) shall be a Loan Party;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or 9.2 (Cother than clause (e) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrowerthereof) and any promissory note or other non-cash consideration received in respect thereof is must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party Disposition in accordance with Section 7.049.5;
(ivd) so long as no Default or Event of Default is continuing or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1A) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory by a supplement to the Administrative Agent, Guaranty confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (4E) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default or Event of Default is continuing or would result therefrom, any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.049.2 (other than Section 9.2(e)); provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the applicable requirements of Sections 6.11 8.11, 8.12 and 6.12;8.13; and
(vif) any Restricted Subsidiary may effect so long as no Default or Event of Default is continuing or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
9.5 (vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionother than Section 9.5(e)).
Appears in 3 contracts
Sources: Credit Agreement (JOANN Inc.), Credit Agreement (JOANN Inc.), Credit Agreement (JOANN Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that, so long as no Event of Default has occurred and is continuing or would result therefrom:
(i) any Restricted Subsidiary Loan Party (other than Parent or Borrower) may merge or consolidate with (A1) the Borrowerany other Loan Party; provided that the Borrower if such Loan Party merges with Parent or Borrower, Parent or Borrower, as applicable, shall be the continuing or surviving Person, or (B2) any one or more other Restricted SubsidiariesPerson; provided that when any Subsidiary that, with respect to the foregoing subclause (2), if such Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person owns an Unencumbered Pool Property and is not a Subsidiary Loan Partythe surviving entity, the acquisition of then such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
Property shall cease to be an Unencumbered Pool Property and (ii) (A) any Restricted Subsidiary that is not a Loan Party may merge with (1) any Loan Party so long as such Loan Party shall be the continuing or consolidate with surviving Person, or into (2) any other Restricted Person; provided that, with respect to the foregoing subclause (2), unless such Subsidiary that is not a Loan Party Wholly Owned Subsidiary and (B) any Restricted merges with another Wholly Owned Subsidiary, if such Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries owns an Unencumbered Pool Property and is not materially disadvantageous the surviving entity, then such Property shall cease to the Lendersbe an Unencumbered Pool Property;
(iiii) any Restricted Subsidiary Loan Party (other than Parent or Borrower) may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower another Loan Party or another Restricted Subsidiaryany other Person; provided that that, if the transferor in such a transaction is Loan Party Disposes of any Unencumbered Pool Property to any Person other than a Loan Party, then such Property shall cease to be an Unencumbered Pool Property, or (Aii) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted any Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to(upon voluntary liquidation or otherwise) to any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, another Subsidiary that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party;
(c) any Loan Party or Subsidiary that is not a Loan Party may Dispose of a Property owned by such Loan Party or Subsidiary in the ordinary course of business and for fair value; provided that, no Event of Default unless such Disposition is made to another Loan Party or a Wholly Owned Subsidiary, if such Property is an Unencumbered Pool Property, then such Property shall cease to be an Unencumbered Pool Property;
(ord) Parent or Borrower may merge or consolidate with another Person so long as either Parent or Borrower, to as the extent related to a Permitted Acquisition or any Investment not prohibited by case may be, is the surviving entity, shall remain in pro forma compliance with the covenants set forth in Section 7.04, no Specified Event of Default) shall exist 8.14 below after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed totransaction, and be substituted for, Borrower obtains the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested prior written consent in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person Required Lenders in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05their sole discretion; and
(viie) a Subsidiary that is not (and is not required to be) a Loan Party may liquidate or otherwise dissolve, provided that immediately prior to any such liquidation or dissolution and immediately thereafter and after giving effect thereto, no Default is or would be in existence. Nothing in this Section shall be deemed to prohibit the Borrower and its Restricted Subsidiaries may consummate sale or leasing of Property or portions of Property in the Acquisitionordinary course of business.
Appears in 3 contracts
Sources: Term Loan Agreement (Agree Realty Corp), Term Loan Agreement (Agree Realty Corp), Revolving Credit Agreement (Agree Realty Corp)
Fundamental Changes. The Neither the Lead Borrower will notnor any of its Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary toamalgamate, merge into or dissolve, liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary of the Lead Borrower (other than the Co-Borrower) may merge merge, amalgamate or consolidate with (Ai) the BorrowerLead Borrower (including a merger, the purpose of which is to reorganize the Lead Borrower into a new jurisdiction); provided that the Lead Borrower shall be the continuing or surviving Person, Person or (Bii) any one or more other Restricted SubsidiariesSubsidiaries of the Lead Borrower (other than the Co-Borrower); provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person unless the resulting Investment made in connection with a Loan Party merging with a Non-Loan Party shall otherwise be a Subsidiary Loan Party Restricted Investment permitted by Section 7.06 (other than Section 7.06(d)) or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Permitted Investment;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Lead Borrower determines in good faith that such action is in the best interests interest of the Lead Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders (it being understood that 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);
(iiic) any Restricted Subsidiary (other than the Co-Borrower) may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Lead Borrower or to another Restricted SubsidiarySubsidiary (other than the Co-Borrower); provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Lead Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in a Restricted Subsidiary that which is not a Loan Party permitted by Section 7.06 (other than Section 7.06(d)) or a Permitted Investment;
(d) any Restricted Subsidiary may merge or amalgamate with any other Person in accordance with order to effect a Restricted Investment permitted pursuant to Section 7.04 7.06 (other than Section 7.06(d)) or (C) to a Permitted Investment; provided that the extent constituting a Disposition to continuing or surviving Person shall be a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by or the Lead Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(ive) so long as no Default exists or would result therefrom, the Lead Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Lead Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Lead Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Lead Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3B) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to each applicable Collateral Document confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (D) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents and (4E) the Lead Borrower shall have delivered to the Administrative Agent a certificate an Officer’s Certificate of a Responsible Officer and an opinion of counsel, each the Lead Borrower stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Lead Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(vf) the Lead Borrower and the Restricted Subsidiaries may consummate the Transactions; and
(g) any Restricted Subsidiary may merge, consolidate or amalgamate with any (other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that than the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(viCo-Borrower) any Restricted Subsidiary may effect a merger, amalgamation, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 3 contracts
Sources: Credit Agreement (Trinseo S.A.), Credit Agreement (Trinseo S.A.), Credit Agreement (Trinseo S.A.)
Fundamental Changes. (a) The Borrower will not, and will not permit any other Restricted Subsidiary to, (x) merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, (y) sell, transfer, license, lease, enter into any sale-leaseback transactions with respect to, or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or (z) liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Restricted Subsidiary or any other Person may merge into or consolidate with (A) the Borrower; provided that the Borrower shall be in a transaction in which the continuing or Borrower is the surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04corporation;
(ii) any Person (Aother than the Borrower) may merge into or consolidate with any Subsidiary in a transaction in which the surviving entity is a Subsidiary (provided that any such merger or consolidation involving a Guarantor must result in a Guarantor as the surviving entity);
(iii) any Restricted Subsidiary that is not a may sell, transfer, license, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary;
(iv) any Loan Party may sell, transfer, license, lease or otherwise dispose of its assets to any other Loan Party;
(v) in connection with any acquisition, any Subsidiary may merge into or consolidate with or into any other Restricted Person, so long as the Person surviving such merger or consolidation shall be a Subsidiary (provided that is not any such merger or consolidation involving a Loan Party and Guarantor must result in a Guarantor as the surviving entity);
(Bvi) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation or dissolution is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;; and
(iiivii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge into or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is in a transaction not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of otherwise prohibited hereunder and all or substantially all of the Borrower’s assetsEquity Interests of any Subsidiary may be sold, if transferred or otherwise disposed of, so long as the transferee aggregate consideration received in respect of all such assets) (any such Personmergers or consolidations, the “Successor Borrower”)sales, (1) the Successor Borrower shall be an entity organized transfers or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party disposals pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
clause (vii) shall not exceed the greater of (a) $100,000,000 and (b) 10% of Total Assets as of the date of such merger, consolidation, sale, transfer or other disposal.
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date of execution of this Agreement and businesses reasonably related, complementary or incidental thereto, which businesses, for the avoidance of doubt, may consummate the Acquisitioninclude or relate to internet, mobile and other media platforms or devices, mobile applications, publishing, advertising, and content creation and distribution.
Appears in 3 contracts
Sources: Revolving Credit Agreement, Revolving Credit Agreement (Twitter, Inc.), Revolving Credit Agreement (Twitter, Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any other Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), except that:
(i) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.046.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.046.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Term Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Term Administrative Agent, that its Guarantee of and grant of any Liens as security for the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Term Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, provided further that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.046.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, provided further that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Term Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.046.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 5.11 and 6.125.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.056.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 3 contracts
Sources: Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.), Term Loan Credit Agreement (Builders FirstSource, Inc.)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any other Restricted Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or amalgamate or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)dissolve, except that:
(i) any Restricted Subsidiary may merge into or amalgamate or consolidate with with, or liquidate or dissolve into (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, Person or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging merging, amalgamating with, or consolidating with liquidating or dissolving into, another Restricted Subsidiary either (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.046.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted must be an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is permitted under Section 6.05 and is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.046.04;
(iv) the Borrower may merge merge, amalgamate or consolidate with (with, or Dispose of all liquidate or substantially all of its assets to) dissolve into, any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, the United States or any political subdivision thereof (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or merger, amalgamation, consolidation, liquidation or dissolution shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of of, and grant of any Liens as security for for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation complies with this Agreement; provided, further, that (yx) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist exists after giving effect to such merger merger, amalgamation, consolidation, liquidation or consolidation dissolution and (zy) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Patriot Act;
(v) [reserved];
(vi) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.046.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 5.11 and 6.125.12;
(vivii) the Borrower and the Restricted Subsidiaries may consummate the Transactions; and
(viii) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition6.05.
Appears in 3 contracts
Sources: Amendment No. 3 (Chewy, Inc.), Abl Credit Agreement (Chewy, Inc.), Abl Credit Agreement (Chewy, Inc.)
Fundamental Changes. The Borrower will notNeither the Company nor any of the Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person (including, in each case, pursuant to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational forma Division), except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerCompany (including a merger, the purpose of which is to reorganize the Company into a new jurisdiction); provided that the Borrower Company shall be the continuing or surviving PersonPerson and such merger does not result in the Company ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or the Company or any Subsidiary may change its legal form (x) if the Borrower Company determines in good faith that such action is in the best interests interest of the Borrower Company and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than 7.02(e)) or 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Company or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;respectively; and
(ivd) so long as no Default exists or would result therefrom, the Borrower Company may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower Company shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) Company (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower Company under this Agreement and the other Loan Documents to which the Borrower Company is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations Guaranty shall apply to the Successor BorrowerCompany’s obligations under this the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, and (4E) the Borrower Company shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower Company under this Agreement and the other Loan DocumentsAgreement; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;and
(ve) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary or the Company, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(viig) the Borrower Company and its Restricted Subsidiaries may consummate Permitted Intercompany Activities, the AcquisitionSpin-Off Transaction and related transactions.
Appears in 3 contracts
Sources: Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other Person to merge into or consolidate with it, or liquidate or dissolve (which, for than as part of the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formTransactions), except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving Person, Person or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party (other than the Borrower) is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person unless the resulting Investment made in connection with a Loan Party merging with a Non-Loan Party shall otherwise be a Subsidiary Loan Party Restricted Investment permitted by Section 7.06 or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Permitted Investment;
(ii) (Ai) any Restricted Subsidiary that is not a Non-Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Non-Loan Party and Party, (Bii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve and (iii) the Borrower or any Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, the Borrower will remain the Borrower and a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is a permitted Investment in must be a Restricted Subsidiary that is not Investment permitted by Section 7.06 or a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04Permitted Investment;
(ivd) so long as no Default has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof, or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.06 or a Permitted Investment; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary of the Borrower, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any the Borrower and the Restricted Subsidiary Subsidiaries may effect consummate the Merger, related transactions contemplated by the Merger Agreement (and documents related thereto) and the Transactions; and
(g) so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 3 contracts
Sources: First Lien Credit Agreement (Portillo's Inc.), Second Lien Credit Agreement (Portillo's Inc.), First Lien Credit Agreement (Portillo's Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit engage in any other Person Asset Sale of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance in favor of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, consolidate, amalgamate or consolidate liquidate with or into (Ai) the Borrower; , provided that the Borrower shall be the continuing or surviving Person, or (Bii) any one or more other Restricted Subsidiaries; , including any such merger, consolidation, or amalgamation, the purpose of which is to change the jurisdiction of the Borrower or any Subsidiary so long as the Borrower remains organized under the laws of the United States, a state within the United States or the District of Columbia and the Loan Parties comply with the Collateral Documents, provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) Subsidiary, such Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ab) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines engage in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition an Asset Sale of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then ;
(Ac) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted any Subsidiary that is not a Loan Party may dispose of all or substantially all its assets (including any Asset Sale that is in accordance with Section 7.04 or (Cthe nature of a liquidation) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borroweri) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted another Subsidiary that is not a Loan Party in accordance with Section 7.04or (ii) to a Loan Party;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(viid) the Borrower and its Restricted Subsidiaries may enter to any merger, consolidation, or amalgamation or effect Asset Sales in order to effect any corporate reorganization, provided that in the case of a merger, consolidation or amalgamation involving a Loan Party, a Loan Party must be the survivor of such merger, consolidation or amalgamation;
(e) in connection with any Permitted Investment, any Subsidiary of the Borrower may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided that (i) the Person surviving such merger shall be a Subsidiary of the Borrower and (ii) in the case of any such merger to which any Loan Party (other than the Borrower) is a party, such Loan Party is the surviving Person; and
(f) the Borrower and its Subsidiaries may consummate the Acquisitionany Asset Sale permitted by Section 7.05.
Appears in 3 contracts
Sources: Amendment Agreement No. 10 (Avient Corp), Amendment Agreement (Avient Corp), Amendment Agreement (Polyone Corp)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary toamalgamate, merge into or dissolve, liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate amalgamate with (Ai) the Borrower; Borrower (provided that the Borrower resulting entity shall be succeed as a matter of law to all of the continuing or surviving Person, Obligations of the Borrower) or (Bii) any one or more other Restricted Subsidiaries; Subsidiaries (provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating amalgamating with another Restricted Subsidiary (1) the Subsidiary, a Loan Party shall be a continuing or surviving Person Person, as applicable, or the resulting entity shall be succeed as a Subsidiary Loan Party or (2) if matter of law to all of the continuing or surviving Person is not a Subsidiary Obligations of such Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04);
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) (A) any Restricted Subsidiary may liquidate, dissolve or wind up, or (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form form, in each case, if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted SubsidiarySubsidiary or to the Borrower; provided that if the transferor in such a transaction is a Loan Party, then either (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party7.02 and Section 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate amalgamate with (or Dispose of all or substantially all of its assets to) any other Person; provided that Person (A1) in a transaction in which the Borrower shall be is the continuing or surviving Person entity of such transaction or (B2) if in a transaction in which such other Person is the Person formed by surviving or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee continuing entity of such assets) transaction (any such Personperson, the “Successor Borrower”); provided that, in the case of this clause (2), (1i) the such Successor Borrower shall be an entity is organized or existing under the laws of a Covered Jurisdiction, the United States; (2ii) the such Successor Borrower shall expressly assume all the obligations Obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, Documents; (3iii) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, Guarantor shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations Guaranty shall apply to the Successor Borrower’s obligations under this the Loan Documents; (iv) each Guarantor shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under the Loan Documents; (4v) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under the Loan Documents; (vi) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent (or any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have Agent) reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III without limitation the USA Patriot Act of the USA PATRIOT Acttype delivered on the Closing Date pursuant to Section 4.01(g) and (vii) the Borrower shall have delivered of an officer’s certificate certifying the compliance with the foregoing;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.10;
(vif) any Restricted Subsidiary the Acquisition may effect be consummated; and
(g) so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation winding up, liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries , may consummate the Acquisitionbe effected.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (RumbleOn, Inc.), Term Loan Credit Agreement (RumbleOn, Inc.), Term Loan Credit Agreement (RumbleOn, Inc.)
Fundamental Changes. The Borrower will not(a) Merge, and will not permit any other Restricted Subsidiary to, merge into combine or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or wind up or dissolve itself (which, for the avoidance of doubt, shall not restrict the Borrower or suffer any Restricted Subsidiary from changing its organizational formliquidation or dissolution), or sell, lease, assign, transfer or otherwise dispose of, all or substantially all of its Property, business or assets, whether in a single transaction or in a series of related transactions, except that:
for (i) any Restricted mergers or consolidations of a wholly-owned Subsidiary may merge or consolidate with (A) the Borroweranother wholly-owned Subsidiary; provided that if any party to any such transaction is a Borrower, the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person entity of such transaction shall be a Subsidiary Loan Party or (2) Borrower; and if the continuing or surviving Person any party to any such transaction is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) any Restricted Subsidiary an Obligor that is not a Loan Party may merge Borrower, the surviving entity of such transaction shall be an Obligor; (ii) mergers or consolidate with or consolidations of a wholly-owned Subsidiary into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
Borrower; (iii) sales, leases, transfers or other dispositions by a Subsidiary (the “Transferring Subsidiary”) of any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation liquidation, winding up or dissolution (which shall be permitted so long as such Subsidiary’s assets are disposed of in accordance with this clause (iii)) or otherwise) to the Borrower or another Restricted any other Subsidiary; provided that if the transferor in such a transaction Transferring Subsidiary is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary Obligor that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartyBorrower, such Disposition is for fair market value (as determined in good faith by the Borrower) sale, lease, transfer or disposition shall be to an Obligor and any promissory note or other non-cash consideration received in respect thereof if such Transferring Subsidiary is a permitted Investment in Subsidiary of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
Borrower, such sale, lease, transfer or disposition shall be to such Borrower; and (iv) Permitted Acquisitions.
(b) Solely in the Borrower may merge case of an Obligor, change its name or consolidate with conduct business under any fictitious name; change its tax, charter or other organizational identification number; change its form or state of organization, except in each case under this clause (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (Bb) if (I) such Obligor shall have given Agent ten (10) Business Days prior written notice thereof and (II) Agent shall have taken all steps reasonably deemed necessary by Agent to maintain the Person formed validity, enforceability, perfection and priority of Agent’s security interest in the Collateral of such Obligor, and Obligor shall have executed and delivered such documents, instruments and agreements requested by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, Agent in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitiontherewith.
Appears in 3 contracts
Sources: Loan Agreement (School Specialty Inc), Loan Agreement (School Specialty Inc), Loan Agreement (School Specialty Inc)
Fundamental Changes. The Borrower will notNone of the Covenant Parties or any of their Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other Person to merge into or consolidate with it, or liquidate or dissolve (which, for than as part of the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formTransaction), except that:
(ia) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with (Ai) any Borrower (including a merger, the Borrowerpurpose of which is to reorganize such Borrower into a new jurisdiction); provided that the such Borrower shall be the continuing or surviving Person, Person or (Bii) any Covenant Party or one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary (other than a Covenant Party) may liquidate or dissolve or change its legal form if the Borrower ▇▇▇▇▇▇▇ determines in good faith that such action is in the best interests interest of the Borrower ▇▇▇▇▇▇▇ and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Covenant Party or Restricted Subsidiary (other than a Borrower) may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower a Covenant Party or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower7.02(e)) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;7.03, respectively; and
(ivd) the so long as no Default exists or would result therefrom, any Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the such Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the such Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof (or, in the case of the Dutch Borrower, an entity organized or existing under the laws of The Netherlands), (2B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, Agent (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor BorrowerCompany’s obligations under this the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (4E) each mortgagor of a mortgaged property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, and (F) such Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the such Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05Agreement; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 3 contracts
Sources: Credit Agreement (Nielsen Holdings B.V.), Credit Agreement (Nielsen Holdings B.V.), Credit Agreement (Global Media USA, LLC)
Fundamental Changes. The Borrower will shall not, and will not nor shall it permit any other Restricted Subsidiary of its Subsidiaries to, directly or indirectly, merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) each of the Borrower and any of its Subsidiaries may merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), except that:
in connection with an Investment permitted hereunder so long as (i) in the case of any Restricted Subsidiary such transaction to which the Borrower is a party, the Borrower is the surviving Person, (ii) in the case of any such transaction to which Forex Capital Markets is a party, Forex Capital Markets is the surviving Person, (iii) in the case of any such transaction to which any UK Regulated Entity is a party, such UK Regulated Entity is the surviving Person (provided that the UK Regulated Entities may merge or consolidate with one another, so long as one such UK Regulated Entity is the surviving Person), and (Aiv) in the case of any such transaction to which any Loan Party (other than the Borrower; provided that the Borrower , Forex Capital Markets or any UK Regulated Entity) is a party, such Loan Party shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (Ab) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in any such a transaction Disposition is a Loan PartyGuarantor, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall either be the Borrower or a Restricted Subsidiary, which together with each Guarantor (or become a Guarantor upon consummation of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12such transfer);
(vic) any Restricted Subsidiary may effect a mergerbe dissolved so long as, dissolutionat such time, liquidation consolidation such Subsidiary has no assets or amalgamation to effect a Disposition permitted pursuant to Section 7.05operations; and
(viid) Online Courses, LLC, a Delaware limited liability company and a partially-owned Subsidiary of the Borrower as of the Closing Date, may be dissolved or liquidated, and its Restricted Subsidiaries may consummate the Acquisitionassets and proceeds distributed to the owners of the Equity Interests therein as agreed among them, so long as the aggregate amount of such assets and proceeds does not exceed $1,000,000.
Appears in 3 contracts
Sources: Credit Agreement (FXCM Inc.), Credit Agreement (FXCM Inc.), Credit Agreement (FXCM Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the BorrowerBorrower (including a merger, the sole purpose of which is to reorganize the Borrower into a new jurisdiction); provided provided, that (x) the Borrower shall be the continuing or surviving PersonPerson and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (Bii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary of the Borrower may liquidate or dissolve or change its legal form (subject, (x) in the case of any change of legal form, to any such Restricted Subsidiary that is a Guarantor remaining a Guarantor and (y) in the case of a liquidation or distribution of a Loan Party, the assets of such Loan Party are transferred to a Loan Party and the security interests of the Collateral Agent in the assets so transferred remain perfected at least to the same extent that such security interests were perfected immediately prior thereto) if the Borrower Holdings determines in good faith that such action is in the best interests of the Borrower Holdings and its Restricted Subsidiaries and such change is not materially disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor or the Borrower, then (Ai) the transferee must either be the Borrower or a Loan Party, Guarantor or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory by a supplement to the Administrative Agent, Guaranty confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under this Agreement, (F) immediately after giving effect to such merger or consolidation, the Successor Company and the Restricted Subsidiaries shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.11, such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such merger or consolidation had been consummated as of the first day of the fiscal period covered thereby and evidenced by a certificate from the Chief Financial Officer of the Successor Company demonstrating such compliance calculation in reasonable detail, and (4G) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.11;
(vif) any the Borrower and the Restricted Subsidiary Subsidiaries may effect consummate the Merger and the other Transactions; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 3 contracts
Sources: Credit Agreement (Bloomin' Brands, Inc.), Credit Agreement (Cheeseburger-Ohio, Limited Partnership), Credit Agreement (Osi Restaurant Partners, LLC)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any other Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or otherwise Dispose of all or substantially all of its assets, or all or substantially all of the Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Restricted Subsidiary Person (other than the Borrower or any of its Subsidiaries) may merge or consolidate with the Borrower or any of its Subsidiaries; provided that any such merger or consolidation involving (A) the Borrower; provided that Borrower must result in the Borrower shall be as the continuing or surviving Person, or entity and (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or Guarantor that is a Domestic Subsidiary must result in such Subsidiary Guarantor as the surviving entity and (2C) if the continuing or surviving Person is not subject to clause (B) above, a Subsidiary Loan Party, the acquisition of Guarantor that is a Foreign Subsidiary must result in such Subsidiary Loan Party by such Guarantor as the surviving Restricted Subsidiary is otherwise permitted under Section 7.04entity;
(ii) any Subsidiary may merge into or consolidate with a Loan Party in a transaction in which the surviving entity is such Loan Party (Aprovided that any such merger involving the Borrower must result in the Borrower as the surviving entity and any such merger involving a Subsidiary Guarantor that is a Domestic Subsidiary must result in such Subsidiary Guarantor as the surviving entity);
(iii) any Restricted Subsidiary that is not a Loan Party may merge into or consolidate with another Subsidiary that is not a Loan Party;
(iv) the Borrower and its Subsidiaries may sell, transfer, lease or into otherwise dispose of any other Restricted Subsidiary that is not a Loan Party and (Band, in connection with a liquidation, winding up or dissolution or otherwise, any Subsidiary that is not a Loan Party may sell, transfer, lease, license or otherwise dispose of any, all or substantially all of its assets) to another Subsidiary that is not a Loan Party;
(v) Dispositions permitted by Section 6.04;
(vi) any Restricted Subsidiary that is not a Loan Party may liquidate liquidate, wind up or dissolve or change its legal form if the Borrower determines in good faith that such action liquidation, winding up or dissolution is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iiivii) any Restricted Domestic Subsidiary may make a Disposition of all liquidate, wind up or substantially all of dissolve if its assets are transferred to a Domestic Loan Party or, if such Subsidiary is not a Subsidiary Guarantor, to any other Subsidiary; and
(upon voluntary liquidation viii) any Foreign Subsidiary may liquidate, wind up or otherwise) dissolve if its assets are transferred to the Borrower or another Restricted a Loan Party or, if such Subsidiary is not a Subsidiary Guarantor, to any other Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is involving a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect Wholly-Owned Subsidiary immediately prior to such merger or consolidation and shall not be permitted unless it is also permitted by Section 6.05.
(zb) if the foregoing requirements are satisfied, the Successor The Borrower will succeed not, nor will it permit any Subsidiary to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts engage to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested material extent in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III business substantially different from businesses of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) type conducted by the Borrower and its Restricted Subsidiaries (taken as a whole) on the Effective Date and businesses reasonably related, ancillary, similar, complementary or synergistic thereto or reasonable extensions, development or expansion thereof.
(c) The Borrower will not, nor will it permit any Subsidiary to, change its fiscal year from the basis in effect on the Effective Date; provided that, notwithstanding the foregoing, the Borrower may consummate (and may permit its Subsidiaries to) change their fiscal year to contain four thirteen-week periods so long as the AcquisitionBorrower 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 Borrower 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 3 contracts
Sources: Credit Agreement (Pacira BioSciences, Inc.), Credit Agreement (Pacira BioSciences, Inc.), Credit Agreement (Pacira BioSciences, Inc.)
Fundamental Changes. (a) The Borrower Parent will not, and will not permit any other Restricted Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate or amalgamate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), except that:
: (i) any Restricted Subsidiary (other than Holdco and the Borrower) may merge into or consolidate or amalgamate with the Parent or the Borrower as long as the Parent or the Borrower, as the case may be, is the surviving entity or such surviving Person shall assume the obligations of the Parent or the Borrower hereunder (and if such Subsidiary is an Unrestricted Subsidiary, any Indebtedness of or Lien granted on the assets of such Subsidiary is permitted by Section 6.01 or 6.02), (ii) any Subsidiary (other than Holdco and the Borrower) may merge into or consolidate or amalgamate with any Loan Party (as long as (A) such Loan Party is the Borrower; provided that the Borrower shall be the continuing or surviving Personentity, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary such surviving entity becomes a Loan Party is merging or consolidating substantially concurrently with another Restricted Subsidiary the consummation of such transaction and complies with Section 5.11 and Section 5.12, (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2C) if such Subsidiary is an Unrestricted Subsidiary, and Indebtedness of or Lien granted on the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition assets of such Subsidiary is permitted by Section 6.01 or 6.02 and (D) the disposition of such Loan Party by such surviving Restricted Subsidiary is would otherwise be permitted under Section 7.04;
6.05 (iiother than Section 6.05(l)) or such Loan Party would otherwise be permitted to be to redesignated as an Excluded Subsidiary immediately prior to such transaction (Aand shall be deemed to be so disposed or redesignated), (iii) any Restricted Subsidiary that is not a Loan Party may merge into or consolidate or amalgamate with or into (A) any other Restricted Subsidiary that is not a Loan Party and or (B) any Restricted Subsidiary may liquidate Loan Party, (iv) the Parent or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make consummate any Investment permitted by Section 6.04 (other than Section 6.04(aa)) (whether through a Disposition of all or substantially all of its assets (upon voluntary liquidation merger, consolidation, amalgamation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party), then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower surviving entity shall be subject to the continuing or surviving Person or requirements of Section 5.11 and Section 5.12 (to the extent applicable) and (B) if the Parent, Holdco or the Borrower is a party to such transaction, the Parent, Holdco or the Borrower, as the case may be, shall be the surviving entity or such surviving Person formed by shall assume the obligations of the Parent, Holdco or the Borrower, as the case may be, hereunder, (v) any Restricted Subsidiary (other than Holdco or the Borrower) may consummate any sale, transfer or other disposition permitted pursuant to Section 6.05 (other than Section 6.05(l)) (whether through a merger, consolidation, amalgamation or otherwise), provided that the surviving entity shall be subject to the requirements of Section 5.11 and Section 5.12 (to the extent applicable), (vi) the Parent and the Restricted Subsidiaries may effect the Permitted Tax Restructuring; provided that the Borrower shall remain an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (vii) any Person may merge into, consolidate or amalgamate with the Company, the Borrower or any of their Subsidiaries in connection with the Transactions and (viii) in each of the preceding clauses (i), (ii) or (iv) of this Section 6.03(a), in the case of any merger, consolidation or amalgamation involving the Parent, Holdco or the Borrower, if the Person surviving such merger merger, consolidation or consolidation amalgamation is not the Borrower Parent, Holdco or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), no Default and Event of Default shall have occurred and be continuing and (1A) in the case of a merger, consolidation or amalgamation involving the Borrower, the Successor Borrower Company shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) in the case of a merger, consolidation or amalgamation involving the Parent or Holdco, the Successor Company shall be an entity organized or existing under the laws of the United States or the United Kingdom (unless otherwise agreed to by the Administrative Agent) and the security interests of the Collateral Agent in the Collateral shall not be materially impaired, (C) the Successor Borrower Company shall expressly assume all the obligations of the Borrower Parent, Holdco or the Borrower, as applicable, under this Agreement and the other Loan Documents to which the Parent, Holdco or the Borrower is a party, (D) each Guarantor of the Obligations of the Borrower, unless it is the other party pursuant to such merger, consolidation or amalgamation, shall have confirmed that its Guaranty shall apply to the Successor Company’s obligations under the Loan Documents, (E) each Guarantor of the Obligations of the Borrower, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement hereto or thereto in form and substance reasonably satisfactory to applicable Security Documents confirmed that its obligations thereunder shall apply to the Administrative AgentSuccessor Company’s obligations under the Loan Documents, (3F) each Loan Party other than the Borrowermortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, affirmed that its Guarantee of and grant of any Liens as security for obligations under the Obligations applicable Mortgage shall apply to its Guaranty as reaffirmed pursuant to clause (C) and (F) the Successor Borrower’s obligations under this Agreement and (4) the Borrower Company shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreementand such supplements preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the applicable Security Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower Parent, Holdco or the Borrower, as the case may be, under this Agreement and Agreement.
(b) The Parent will not, nor will the Parent permit any Restricted Subsidiary to, liquidate or dissolve, except that: (i) any Subsidiary (other than the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to any other Loan Documents; providedParty, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(vii) any Restricted Subsidiary that is not a Loan Party may mergetransfer all or any portion of its assets (upon liquidation, consolidate dissolution, winding-up or amalgamate with any similar transaction) to the Parent or any Restricted Subsidiary, (iii) any Loan Party (other than the Parent or the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to any Loan Party, (iv) the Parent or any Restricted Subsidiary may change its legal form, (v) the Parent and the Restricted Subsidiaries may effect the Permitted Tax Restructuring and (vi) any Restricted Subsidiary (other than the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to any Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower 6.04 (other than Section 6.04(aa)) or a Restricted Subsidiarysale, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation transfer or amalgamation to effect a Disposition other disposition permitted pursuant to Section 7.05; and
6.05 (vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionother than Section 6.05(l)).
Appears in 3 contracts
Sources: Credit Agreement (Micro Focus International PLC), Credit Agreement (Micro Focus International PLC), Credit Agreement (Micro Focus International PLC)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) any Borrower (including a merger, the Borrowerpurpose of which is to reorganize such Borrower into a new jurisdiction); provided that the (x) such Borrower shall be the continuing or surviving PersonPerson and (y) such merger does not result in any Overseas Borrower ceasing to be a Qualifying Foreign Subsidiary or the Company ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia, or (Bii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary (other than a Borrower) may liquidate or dissolve or change its legal form if the Borrower Holdings determines in good faith that such action is in the best interests of the Borrower Holdings and its Restricted Subsidiaries and is if not materially disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Company or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor or a Borrower, then (Ai) the transferee must either be a Loan Party, Borrower or a Guarantor or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower Company may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower Company shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) Company (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower Company under this Agreement and the other Loan Documents to which the Borrower Company is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerU.S. Guarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory by a supplement to the Administrative Agent, Guaranty confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor BorrowerCompany’s obligations under this Agreement, (D) each U.S. Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under this Agreement, and (4F) the Borrower Company shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower Company under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.11;
(vif) any the Company and the Restricted Subsidiary Subsidiaries may effect consummate the Merger; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 3 contracts
Sources: Second Refinancing and Incremental Amendment (Sungard Capital Corp Ii), Credit Agreement (Sungard Data Systems Inc), Credit Agreement (Sungard Data Systems Inc)
Fundamental Changes. (a) The Borrower will not, and nor will not the Borrower permit any other Restricted Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate or amalgamate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), except that:
(i) so long as such transactions would not materially affect the ability of a Loan Party to repatriate cash to the Borrower in the ordinary course of its business, any Restricted Holding Company (other than Holdings) and any Subsidiary may merge into or consolidate or amalgamate with (A) the Borrower; provided that the Borrower shall be as long as the continuing Borrower is the surviving entity or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or such surviving Person shall be a assume the obligations of the Borrower hereunder (and if such Subsidiary Loan Party is an Unrestricted Subsidiary, any Indebtedness of or (2) if Lien granted on the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition assets of such Subsidiary Loan Party is permitted by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;6.01 or Section 6.02, as applicable),
(ii) so long as such transactions would not materially affect the ability of a Loan Party to repatriate cash to the Borrower in the ordinary course of its business, any Subsidiary may merge into or consolidate or amalgamate with any Loan Party (as long as (A) such Loan Party is the surviving entity, (B) such surviving entity becomes a Loan Party substantially concurrently with the consummation of such transaction and complies with Section 5.10 and Section 5.11, (C) the disposition of such Loan Party would otherwise be permitted under Section 6.05 (other than Section 6.05(k)) or (D) such Loan Party would otherwise be permitted to be redesignated as an Excluded Subsidiary immediately prior to such transaction (and shall be deemed to be so disposed or redesignated)),
(iii) any Restricted Subsidiary that is not a Loan Party may merge into or consolidate or amalgamate with or into (A) any other Restricted Subsidiary that is not a Loan Party and or (B) any Restricted Subsidiary may liquidate Loan Party as long as such Loan Party is the surviving entity or dissolve or change its legal form if such surviving Person shall assume the Borrower determines in good faith that such action is in the best interests obligations of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a applicable Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;hereunder,
(iv) the Borrower or any Restricted Subsidiary may merge consummate any Investment permitted by Section 6.04 (other than Section 6.04(aa)) (whether through a merger, consolidation, amalgamation or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; otherwise): provided that (A) the Borrower surviving entity shall be subject to the continuing or surviving Person or requirements of Section 5.10 and Section 5.11 (to the extent applicable) and (B) if the Borrower is a party to such transaction, the Borrower shall be the surviving entity or such surviving Person formed by shall assume the obligations of the Borrower hereunder,
(v) any Holding Company or Restricted Subsidiary of a Holding Company (including the Borrower) may consummate any sale, transfer or other disposition permitted pursuant to Section 6.05 (other than Section 6.05(k)) (whether through a merger, consolidation, amalgamation or otherwise),
(vi) [reserved], and
(vii) In each of the preceding clauses (i), (ii), (iii), (iv)(B), or (v) of this Section 6.03(a), in the case of any merger, consolidation or amalgamation involving the Borrower, if the Person surviving any such merger merger, consolidation or consolidation amalgamation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1) the Successor Borrower Company shall be an entity organized or existing under the laws of the United States, any State thereof or the District of Columbia or such other jurisdiction as may be reasonably acceptable to the Collateral Agent; provided, that (A) at all times at least one Borrower shall be a Covered Jurisdictioncorporation or limited liability company organized under the laws of the United States, a State thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all of the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agentparty, (3C) each Loan Party Party, unless it is the other than party to such merger, consolidation or amalgamation, shall have confirmed that its Guarantee shall apply to the BorrowerSuccessor Company’s obligations under the Loan Documents, (D) each Loan Party, unless it is the other party to such merger, consolidation or amalgamation, shall have by a supplement to applicable Security Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, affirmed that its Guarantee of and grant of any Liens as security for obligations under the Obligations applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (C) and (F) the Successor Borrower’s obligations under this Agreement and (4) the Borrower Company shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreementand such supplements preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the applicable Security Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and Agreement.
(b) The Borrower will not, nor will the Borrower permit any Restricted Subsidiary to, liquidate or dissolve, except that:
(i) any Subsidiary (other than the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to the Borrower or any Loan Party;
(ii) any Restricted Subsidiary that is not a Loan Party may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to the Borrower or any other Restricted Subsidiary;
(iii) any Loan Party (other than the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to the Borrower or any other Loan DocumentsParty;
(A) the Borrower or (B) any Restricted Subsidiary may change its legal form; provided that at all times at least one Borrower shall be a corporation or limited liability company organized under the laws of the United States or a state or territory thereof or the District of Columbia; provided, furtherfurther that in the case of clauses (A) and (B), that such changes shall not adversely impact the scope of the Collateral or the Guarantees provided in the Guaranty;
(v) [reserved];
(vi) [reserved];
(vii) [reserved]; and
(viii) any Restricted Subsidiary (other than the Borrower) may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to any Person in order to effect an Investment permitted pursuant to Section 6.04 (other than Section 6.04(aa)) and any Holding Company or any of its Restricted Subsidiaries may transfer all or any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) upon a sale, transfer or other disposition permitted pursuant to Section 6.05 (other than Section 6.05(k)).
(c) The Borrower will use commercially reasonable efforts to provide not consummate any documentation Division. Notwithstanding the foregoing, (i) any Person that becomes a Loan Party as a result of the changes set forth in each sub-clause of clauses (a) and other information about the Successor Borrower as (b) above shall have been reasonably requested in writing by any Lender or LC Issuer through satisfied the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities reasonable requirements under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Patriot Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that which the continuing or surviving Person shall be the Borrower or a Restricted SubsidiaryAdministrative Agent, which together with and each Lender and each of the Restricted SubsidiariesIssuing Banks are subject, (ii) the changes set forth in each sub-clause (a) and (b) above shall have complied with not materially impair the requirements security interests of Sections 6.11 and 6.12;
the Lenders or materially reduce (vion a pro forma basis for the most recent period of four fiscal quarters of the Borrower) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the consolidated revenues of the Borrower and its Restricted Subsidiaries may consummate the Acquisitionother Loan Parties, and (iii ) after giving effect to any changes set forth in each sub-clause of clauses (a) and (b) above, the Borrower and Holdings shall comply with Section 5.11.
Appears in 3 contracts
Sources: First Lien Credit Agreement (GoodRx Holdings, Inc.), First Lien Credit Agreement (GoodRx Holdings, Inc.), First Lien Credit Agreement (GoodRx Holdings, Inc.)
Fundamental Changes. The Borrower will shall not, and will not nor shall it permit any other Restricted Subsidiary to, merge into directly or indirectly, merge, dissolve, liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (w) no Event of Default exists or would result therefrom, (x) the Borrower shall be the continuing or surviving Person, (y) such transaction does not result in the Borrower ceasing to be organized under the laws of the United States, any State thereof or the District of Columbia and (z) such transaction does not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents or (Bii) any one or more other Restricted Subsidiaries; provided provided, in the case of this clause (ii), that when any Subsidiary such transaction involves a Loan Party, a Loan Party is merging or consolidating with another Restricted Subsidiary (1) shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if except to the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party extent otherwise constituting an Investment permitted by such surviving Restricted Subsidiary is otherwise permitted under Section 7.047.02;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the LendersLenders in any material respect (it being understood that (other than a transaction constituting a permitted Investment under Section 7.02 or involving an Excluded Subsidiary) in the case of any liquidation or dissolution of a Guarantor, such Guarantor shall transfer its assets to a Loan Party, and in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor and such transaction shall not have an adverse effect on the perfection or priority of the Liens granted under the Collateral Documents);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Event of Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1A) the Successor Borrower shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia and such transaction shall not have an adverse effect in any material respect on the perfection or priority of the Liens granted under the Collateral Documents, (2B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative AgentAgent and the Borrower, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, (4E) if reasonably requested by the Collateral Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent) confirmed that the collateral granted by it to secure its obligations thereunder shall apply to secure its and the Successor Borrower’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counselopinion, each stating that such merger or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, provided further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfiedsatisfied (or waived), the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan DocumentsAgreement; provided, further, provided further that the Borrower will use commercially reasonable efforts agrees to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities or under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of without limitation the USA PATRIOT Patriot Act;
(ve) any Restricted Subsidiary may merge, amalgamate or consolidate or amalgamate with any other Person (other than the Borrower) in order to effect an Investment permitted pursuant to Section 7.047.02; provided that either (x) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement or (y) the transaction shall otherwise constitute a permitted Investment;
(vif) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation consolidation, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(viig) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower and its Restricted Subsidiaries may consummate the Acquisitionextent that such Disposition (or series of related Dispositions) is not prohibited under Section 7.05.
Appears in 3 contracts
Sources: Credit Agreement (Yellow Corp), Credit Agreement (Yellow Corp), Credit Agreement (YRC Worldwide Inc.)
Fundamental Changes. The (a) Neither Holdings nor the Borrower will, nor will not, and will not they permit any other Restricted Subsidiary or Intermediate Parent to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)dissolve, except that:
(i) any Restricted Subsidiary or Intermediate Parent may merge or consolidate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) in the case of any Restricted Subsidiary, any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1x) the continuing or surviving Person shall be a Subsidiary Loan Party or (2y) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.046.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower Holdings determines in good faith that such action is in the best interests of Holdings, the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.046.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1w) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any State thereof or the District of Columbia, (2x) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3y) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of, and grant of any Liens as security for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (z) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided further that (1) if such Person is not a Loan Party, no Default exists after giving effect to such merger or consolidation and (2) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided further that the Borrower agrees to use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender through the Administrative Agent that such Lender shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;
(v) Holdings may merge or consolidate with any other Person, so long as no Event of Default exists after giving effect to such merger or consolidation; provided that (A) Holdings shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not Holdings or is a Person into which Holdings has been liquidated (any such Person, the “Successor Holdings”), (w) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (x) each Loan Party other than Holdings, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Secured Obligations shall apply to the Successor Borrower’s Holdings’ obligations under this Agreement Agreement, (y) the Successor Holdings shall, immediately following such merger or consolidation, directly or indirectly own all Subsidiaries owned by Holdings immediately prior to such merger and (4z) the Borrower Holdings shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, provided further that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Holdings will succeed to, and be substituted for, the Borrower Holdings under this Agreement and the other Loan Documents; provided, further, provided further that the Borrower will agrees to use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower Holdings as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of without limitation the USA PATRIOT Patriot Act;
(vvi) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.046.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 5.11 and 6.125.12 and if the other party to such transaction is not a Loan Party, no Default exists after giving effect to such transaction;
(vivii) Holdings, the Borrower or any Restricted Subsidiary may effect the IPO Reorganization Transactions; and
(viii) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.056.05; andprovided that if the other party to such transaction is not a Loan Party, no Default exists after giving effect to the transaction.
(b) The Borrower will not, and Holdings and the Borrower will not permit any Restricted Subsidiary or Intermediate Parent to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Restricted Subsidiaries on the Closing Date and businesses reasonably related or ancillary thereto.
(c) Holdings and any Intermediate Parent will not conduct, transact or otherwise engage in any business or operations other than (i) (x) the ownership and/or acquisition of the Equity Interests of the Borrower and any Intermediate Parent and (y) in the case of Holdings, prior to an IPO, the Equity Interests of IPO Listco directly or indirectly and the Equity Interests of IPO Subsidiary indirectly through IPO Listco, (ii) the maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such maintenance, (iii) participating in tax, accounting and other administrative matters, (iv) the performance of its obligations under and in connection with the Loan Documents, any documentation governing any Indebtedness or Guarantee permitted to be incurred or made by it under Article 6, the Holdings LLC Agreement, and the other agreements contemplated hereby, (v) any public offering of its common stock or any other issuance or registration of its Equity Interests for sale or resale not prohibited by this Agreement, including the costs, fees and expenses related thereto, (vi) any transaction that Holdings or any Intermediate Parent is permitted to enter into or consummate under Article 6 (including, but not limited to, the making of any Restricted Payment permitted by Section 6.08 or holding of any cash or Permitted Investments received in connection with Restricted Payments made in accordance with Section 6.08 pending application thereof in the manner contemplated by Section 6.04, the incurrence of any Indebtedness permitted to be incurred by it under Section 6.01 and the making of any Investment permitted to be made by it under Section 6.04), (vii) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues and paying taxes, (viii) providing indemnification to officers and directors and as otherwise permitted in Section 6.09, (ix) activities incidental to the Borrower consummation of the Transactions, (x) activities reasonably incidental to the consummation of an IPO, including the IPO Reorganization Transactions and (xi) activities incidental to the businesses or activities described in clauses (i) to (x) of this paragraph.
(d) Holdings and any Intermediate Parent will not own or acquire any assets (other than Equity Interests as referred to in paragraph (c)(i) above, cash, Permitted Investments, loans and advances made by Holdings or any Intermediate Parent under Section 6.04(b) and intercompany Investments consisting of Indebtedness permitted to be made by it under Section 6.04) or incur any liabilities (other than liabilities as referred to in paragraph (c) above, liabilities imposed by law, including tax liabilities, and other liabilities incidental to its Restricted Subsidiaries may consummate existence and business and activities permitted by this Agreement).
(e) Prior to the Acquisitionconsummation of an IPO, neither IPO Shell Company will conduct, transact or otherwise engage in any business or operations other than (i) the maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such maintenance, (ii) participating in tax, accounting and other administrative matters, (iii) in the case of the IPO Listco, holding Equity Interests of the IPO Subsidiary, (iv) holding Equity Interests of Holdings, (v) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues and paying taxes, (vi) providing indemnification to officers and directors and as otherwise permitted in Section 6.09, (vii) activities incidental to the consummation of an IPO, including the IPO Reorganization Transactions and (viii) activities incidental to the businesses or activities described in clauses (i) to (vii) of this paragraph; provided that each IPO Shell Company shall cease to be a subsidiary of Holdings no later than the consummation of an IPO.
Appears in 3 contracts
Sources: Incremental Revolving Facility Amendment and Joinder Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.)
Fundamental Changes. The Borrower will notEnter into any merger, and will not permit any other Restricted 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 liquidate Dispose of all or dissolve (which, for the avoidance substantially all of doubt, shall not restrict the Borrower its property or any Restricted Subsidiary from changing its organizational form)business, except that:
(ia) any Restricted Subsidiary of Holdings that is not a Foreign Subsidiary of the Borrower may merge be merged or consolidate consolidated with (A) or into the Borrower; , as the case may be (provided that the Borrower shall be the continuing or surviving Person, corporation) or with or into U.S. Holdings or any Subsidiary Guarantor (B) any one or more other Restricted Subsidiaries; provided that when any a Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) Guarantor shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Partycorporation), the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) any Foreign Subsidiary that is a Subsidiary Guarantor may be merged or consolidated with or into any other Foreign Subsidiary that is a Subsidiary Guarantor, and (Aiii) any Restricted Subsidiary Group Member that is not a Loan Party may merge be merged or consolidate consolidated with or into another Group Member that is not a Loan Party.
(b) (x) any other Restricted Subsidiary Loan Party may Dispose of any or all of its assets (i) to another Loan Party (upon voluntary liquidation or otherwise) or (ii) pursuant to a Disposition permitted by Section 9.5 and (y) any Group Member that is not a Loan Party may Dispose of any or all of its assets to (i) the Borrower or any other Group Member or (ii) pursuant to a Disposition permitted by Section 9.5.
(c) any Investment of the Group Members expressly permitted by Section 9.7 may be structured as a merger, consolidation or amalgamation (provided that (x) if the Borrower is a party to such merger, consolidation or amalgamation, the Borrower shall be the continuing or surviving corporation thereof, (y) if a Subsidiary Guarantor is a party to such merger, consolidation or amalgamation, a Subsidiary Guarantor shall be the continuing or surviving Person thereof and (Bz) if a Group Member that is not a Loan Party is a party to such merger, consolidation or amalgamation (and the Borrower is not a party thereto), a Group Member shall be the continuing or surviving Person thereof);
(d) any Restricted Subsidiary Group Member (other than the Borrower) may liquidate or dissolve or change its legal form if the Borrower Holdings determines in good faith that such action liquidation or dissolution is in the best interests of the Borrower Holdings and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
; provided that if U.S. Holdings or a Subsidiary Guarantor liquidates or dissolves in accordance with this Section 9.4(d), (iiii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets shall be transferred to, or otherwise assumed by, the Borrower or, other than in the case of U.S. Holdings, another Subsidiary Guarantor and (upon voluntary ii) no Event of Default shall have occurred and be continuing at such time;
(e) any merger, dissolution or liquidation or otherwise) to not involving the Borrower or another Restricted Subsidiary; provided that if Holdings may be effected for the transferor in such purposes of effecting a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with by Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.049.5;
(ivf) any merger, consolidation, amalgamation, dissolution or liquidation to achieve the Borrower may merge structure set forth in the Final Structure Schedule. Notwithstanding the foregoing, Holdings shall not and no Subsidiary Guarantor that is a Foreign Subsidiary shall enter into any merger, consolidation or consolidate with amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing property or surviving Person or (B) business if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee result of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionwould result in such Subsidiary Guarantor becoming an Excluded Foreign Subsidiary.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Ancestry.com LLC), Credit and Guaranty Agreement (Anvilire), Credit and Guaranty Agreement (Anvilire)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; provided that (x) the Borrower shall be the continuing or surviving PersonPerson and (y) such merger or consolidation does not result in the Borrower ceasing to be organized under the Laws of the United States, any state thereof or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition District of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Columbia;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary of the Borrower that is not a Loan Party, (ii) any Subsidiary may merge or consolidate with or into any other Subsidiary of the Borrower that is a Loan Party, (iii) any merger the sole purpose of which is to reincorporate or reorganize a Loan Party in another jurisdiction in the United States shall be permitted and (Biv) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the LendersLenders in any material respect; provided, in the case of clauses (ii) through (iv) of this paragraph (b), that (A) no Event of Default shall result therefrom and (B) the surviving Person (or, with respect to clause (iv), the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor) shall be a Loan Party;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or 9.2 (Cother than clause (e) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrowerthereof) and any promissory note or other non-cash consideration received in respect thereof is must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party Disposition in accordance with Section 7.049.5;
(ivd) the Borrower so long as no Event of Default has occurred and is continuing or would result therefrom, any Subsidiary may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.049.2 (other than Section 9.2(e)); provided that if the merger involves a Loan Party, the surviving entity shall be a Loan Party; and
(e) so long as no Event of Default has occurred and is continuing or surviving Person shall be the Borrower or a Restricted Subsidiarywould result therefrom, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
9.5 (vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionother than Section 9.5(e)).
Appears in 3 contracts
Sources: Credit Agreement (eHealth, Inc.), Credit Agreement (eHealth, Inc.), Credit Agreement (eHealth, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that, so long as no Default exists or would result therefrom:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the Borrower; , provided that the Borrower shall be the continuing or surviving Person, or (Bii) any one or more other Restricted Subsidiaries; , provided that when any Subsidiary Loan Party (other than Holdings) is merging or consolidating with another Restricted Subsidiary (1) Subsidiary, such Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ab) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then ;
(Ac) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted any Subsidiary that is not a Loan Party in accordance with Section 7.04 may dispose of all or substantially all its assets to (Ci) to the extent constituting a Disposition to a Restricted another Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that which is not a Loan Party or (ii) to a Loan Party for no consideration, or, in accordance with Section 7.04the case of this clause (ii), pursuant to a Disposition which is in the nature of a liquidation;
(ivd) the Borrower any Subsidiary may merge or consolidate with (or Dispose of all or substantially all of its assets topursuant to a Disposition permitted under Section 7.05 (excluding clause (e) thereof);
(e) the Borrower and its Subsidiaries may consummate the Merger and the Opco Merger;
(f) in connection with any acquisition permitted under Section 7.03, any Subsidiary of the Borrower may merge into or consolidate with any other PersonPerson or any such Subsidiary or the Borrower may permit any other Person to merge into or consolidate with it; provided that (A) the Borrower Person surviving such merger shall be the Borrower or a wholly-owned Subsidiary of the Borrower; and
(g) so long as no Default has occurred and is continuing or surviving would result therefrom, any Subsidiary of the Borrower may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided, however, that in each case, immediately after giving effect thereto (Bi) if in the Person formed by or surviving case of any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant party, the Borrower is the surviving corporation and (ii) in the case of any such merger to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each which any Loan Party (other than the Borrower) is a party, unless it such Loan Party is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitioncorporation.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Smart Balance, Inc.), First Lien Credit Agreement (Smart Balance, Inc.)
Fundamental Changes. The Borrower will Such Credit Party shall not, and will shall not permit any other Restricted Subsidiary to, merge into or consolidate with any other Person, suffer or permit any other Person to merge into of its Subsidiaries to, merge, consolidate, amalgamate or consolidate with itsell all or substantially all of the assets of any Credit Party or any of its Subsidiaries, or liquidate liquidate, wind up or dissolve itself (which, for the avoidance of doubt, shall not restrict the Borrower or suffer any Restricted Subsidiary from changing its organizational formliquidation or dissolution), except that:
if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing, (ia) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Credit Party may merge merge, consolidate, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of sell all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Credit Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Credit Party; provided that, if either such Subsidiary is a direct Subsidiary of a Credit Party, the surviving entity or the transferee entity, as applicable, shall be a direct Subsidiary of a Credit Party; provided further that in any such merger, consolidation, amalgamation or sale involving a Credit Party, the surviving entity or transferee entity, as applicable, shall be a Credit Party or a Person that becomes a Credit Party; (b) any Subsidiary that is not a Loan Party, such Disposition is for fair market value Credit Party (as determined in good faith by other than the Borrower) and any promissory note may merge, consolidate, amalgamate or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of sell all or substantially all of its assets toto another Subsidiary that is a Credit Party (including the Borrower); provided that the surviving entity or the transferee entity, as applicable, shall be a Credit Party; provided, further, that, in the event that any of the foregoing involves the Borrower, the surviving entity or the transferee entity, as applicable, shall be the Borrower; (c) any other Personthe Borrower may merge, consolidate, amalgamate or sell all or substantially all of its assets to a Subsidiary owned directly by the Borrower immediately prior to such transactions; provided that (Ai) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such entity of a merger or consolidation is not with the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of transferee entity that receives all or substantially all of the Borrower’s assets, if the transferee of such assets) as applicable (any such Person, the “Successor BorrowerEntity”), (1) the Successor Borrower shall be an entity a corporation or limited liability company organized or and existing under the laws of a Covered Jurisdictionthe United States, (2) any State thereof or the Successor Borrower District of Columbia and shall expressly assume all of the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto documentation in form and substance reasonably satisfactory to the Administrative Agent, (3ii) immediately after giving effect to such merger, consolidation, amalgamation or sale, as applicable, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) except as the Administrative Agent may otherwise agree, each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or merger, consolidation, amalgamation or sale, as applicable, shall have reaffirmed, pursuant execute and deliver a reaffirmation agreement with respect to an agreement its obligations under the other Loan Documents in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of (iv) the Successor Entity shall provide the documentation and grant of any Liens as security for the Obligations shall apply other information to the Successor Borrower’s obligations Administrative Agent as the Administrative Agent and the Lenders reasonably determine are required by bank regulatory authorities under this Agreement applicable “know-your-customer” and (4) Anti-Money Laundering Laws, including the PATRIOT Act; provided that, the Borrower shall have delivered notified the Administrative Agent in writing at least seven (7) Business Days prior to such merger, consolidation, amalgamation or sale, as applicable, and each Lender shall have been provided with documentation and other information it reasonably determines are required by bank regulatory authorities under applicable “know-your-customer” and Anti-Money Laundering Laws, including the PATRIOT Act, at least five (5) Business Days prior to the consummation of such merger, consolidation, amalgamation or sale, as applicable, as has been reasonably requested in writing at least six (6) Business Days prior to such merger, consolidation, amalgamation or sale, as applicable, and (v) the Successor Entity shall deliver an officer’s certificate to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist effect that after giving effect to such merger merger, consolidation, amalgamation or consolidation sale, as applicable, no Default or Event of Default shall have occurred and be continuing or would result therefrom (z) it being understood and agreed that, if the foregoing requirements conditions under clauses (i) through (v) are satisfied, the Successor Borrower Entity will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents); providedand (d) any Subsidiary may liquidate, further, that wind up or dissolve so long as (i) the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested determines in writing by any Lender or LC Issuer through the Administrative Agent good faith that such Lender liquidation, winding up or LC Issuer shall have reasonably determined dissolution is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III in the best interest of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate and (ii) in the Acquisitioncase of any liquidation, winding up or dissolution of any Subsidiary that is a Guarantor, such Subsidiary shall, at or before the time of such liquidation, winding up or dissolution, transfer its assets (if any) to the Borrower or another Subsidiary that is a Guarantor in the same national jurisdiction or a different jurisdiction reasonably satisfactory to the Administrative Agent; provided that, no such action pursuant to clause (a), (b), (c) or (d) above is permitted if such action could reasonably be expected, in the judgment of the Borrower, to (i) have a material adverse effect on the Lenders, (ii) be disproportionately beneficial to the holders of any Material Indebtedness of the Borrower or its Subsidiaries as compared to the Lenders or (iii) be disproportionately adverse to the Lenders as compared to such other holders.
Appears in 2 contracts
Sources: Credit Agreement (Employers Holdings, Inc.), Credit Agreement (Employers Holdings, Inc.)
Fundamental Changes. The Borrower will not(a) Merge, and will not permit any other Restricted Subsidiary to, merge into combine or consolidate with any other Person, or permit any other Person to merge into or consolidate with itliquidate, or liquidate wind up its affairs or dissolve (whichitself, for the avoidance in each case whether in a single transaction or in a series of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)related transactions, except that:
for mergers or consolidations of a wholly-owned Subsidiary with another wholly-owned Subsidiary or into a Borrower (i) any Restricted Subsidiary may merge or consolidate with (A) into a Borrower in a transaction in which such Borrower is the Borrower; provided that the Borrower shall be the continuing or surviving Personentity, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that in a transaction in which the surviving entity is not a Loan Party Subsidiary and if any party to such merger is an Obligor, such surviving entity is an Obligor, (Biii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower Boise Cascade determines in good faith that such action liquidation or dissolution is in the best interests of the Borrower and its Restricted Subsidiaries Borrowers and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the any Borrower may permit another Person to merge or consolidate with such Borrower or a Subsidiary in order to effect a Permitted Investment (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation entity is not the a Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assetswholly-owned Subsidiary) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted a Subsidiary may merge, merge into and consolidate or amalgamate with any other another Person in order to effect an Investment permitted a transaction in which all the Equity Interests of such Subsidiary owned directly or indirectly by the Borrowers would be disposed of pursuant to Section 7.04; provided a Permitted Asset Disposition, (b) change its name, change its tax, charter or other organizational identification number, or change its form or state of organization, in each case except on 10 Business Days prior notice and so long as the Borrowers provide Agent with all appropriate documentation (and confirmation of filing thereof) that Agent reasonably requests to confirm the continuing or surviving Person shall be continued perfection of its security interests in the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the AcquisitionCollateral.
Appears in 2 contracts
Sources: Loan and Security Agreement (Boise Cascade Holdings, L.L.C.), Loan and Security Agreement (Boise Cascade Holdings, L.L.C.)
Fundamental Changes. The Borrower will shall not, and will not nor shall the Borrower permit any other Restricted Subsidiary to, consolidate, amalgamate or merge with or into or consolidate with any other wind up into another Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve or sell, transfer, lease or otherwise dispose of (whichwhether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), for including by an allocation of assets among newly divided limited liability companies pursuant to a “plan of division” under the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Delaware Limited Liability Company Act, except that:
(i1) Subject to Section 3.03(a) of the Security Agreement, any Restricted Subsidiary may merge merge, amalgamate or consolidate with the Borrower (A) including a merger, amalgamation or consolidation, the Borrowerpurpose of which is to reorganize or continue the Borrower into a new jurisdiction); provided that that:
(a) the Borrower shall be the continuing or surviving Person, and
(b) such merger, amalgamation or consolidation does not result in the Borrower ceasing to be formed, incorporated or organized under the Laws of Luxembourg (Bunless formed, incorporated or organized in the United States, any state thereof or the District of Columbia).
(i) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may amalgamate, merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary that is a Loan Party may merge or consolidate with a Subsidiary that is not a Loan Party so long as the resulting Investment in such Non-Loan Party Subsidiary, if newly made, would otherwise constitute a Permitted Investment;
(b) any Subsidiary may amalgamate, merge or consolidate with or into any other Subsidiary that is a Loan Party; provided that a Loan Party shall be the continuing or surviving Person or the resulting Investment in the continuing or surviving Person, if newly made, would otherwise constitute a Permitted Investment;
(c) any merger, amalgamation or consolidation the sole purpose of which is to reincorporate or reorganize or continue a Loan Party in another jurisdiction in the United States will be permitted, and
(d) any Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders; provided that in the case of this Section 7.03(2), (x) no Event of Default shall have occurred and be continuing or result therefrom or, in the case of a Permitted Acquisition or similar committed investment, no Event of Default under Section 8.01(1) or Section 8.01(6) shall have occurred and be continuing or result therefrom and (y) the Person who receives the assets of such dissolving or liquidated Subsidiary that is a Guarantor shall be a Loan Party or such disposition shall otherwise be permitted under Section 7.05 or would otherwise constitute a Permitted Investment;
(iii3) any Restricted Subsidiary may make a Disposition dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ax) the transferee must be a Loan Party, Party or (By) to the extent constituting an Investment, such Investment is must be a permitted Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that which is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv4) so long as no Event of Default shall have occurred and be continuing or result therefrom or, in the case of a Permitted Acquisition or similar committed investment, no Event of Default under Section 8.01(1) or Section 8.01(6) shall have occurred and be continuing or result therefrom, the Borrower may amalgamate, merge or consolidate with (or Dispose dispose of all or substantially all of its assets to) any other Person; provided that that:
(Aa) the Borrower shall be the continuing or surviving Person corporation or (Bb) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition disposition of all or substantially all of the Borrower’s assets, if is the transferee of such assets) (any such Person, the a “Successor Borrower”), (1) ): the Successor Borrower shall will:
(A) be an entity formed, incorporated, organized or existing under the laws Laws of a Covered JurisdictionLuxembourg or the United States, any state thereof or the District of Columbia;
(2B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent and the Borrower; and
(C) deliver to the Administrative Agent (I) an Officer’s Certificate stating that such merger, amalgamation or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) satisfies the requirements under this Section 7.03(4) and (II) an Opinion of Counsel including customary organization, due execution, no conflicts and enforceability opinions (similar in scope and substance to the opinions delivered to the Administrative Agent on the Effective Date or the Closing Date, as applicable) to the extent reasonably requested by the Administrative Agent, ;
(3ii) substantially contemporaneously with such transaction (or at a later date as may be agreed by the Administrative Agent),
(A) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have reaffirmedwill by a supplement to the Guaranty (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guaranty of the Obligations (including the Successor Borrower’s obligations under this Agreement),
(B) each Loan Party, pursuant unless it is the other party to an agreement such merger, amalgamation or consolidation, will, by a supplement to the Security Agreement (or in another form and substance reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder, and
(C) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation, will, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Collateral Agent and the Borrower), confirm that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and Agreement;
(4iii) the Borrower shall have delivered to [reserved]; and
(iv) the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that shall have received at least three (y3) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect Business Days prior to such merger or consolidation transaction all documentation and (z) other information in respect of the Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act; provided further that if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(v5) [reserved];
(6) any Restricted Subsidiary may mergeamalgamate, merge or consolidate with (or amalgamate with dispose of all or substantially all of its assets to) any other Person in order to effect an a Permitted Investment or other investment permitted pursuant to Section 7.047.05 so long as no Event of Default shall have occurred and be continuing or result therefrom or, in the case of a Permitted Acquisition or similar committed investment, no Event of Default under Section 8.01(1) or Section 8.01(6) shall have occurred and be continuing or result therefrom; provided further, that the continuing or surviving Person shall will be the Borrower or a Restricted SubsidiaryLoan Party, in each case, which together with each of the Restricted its Subsidiaries, shall will have complied with the applicable requirements of Sections 6.11 and 6.12Section 6.11;
(vi7) any Restricted Subsidiary may effect a merger, amalgamation, dissolution, liquidation liquidation, consolidation or amalgamation disposition, the purpose of which is to effect a Disposition disposition permitted pursuant to Section 7.057.04 (other than under clause (c) of the definition of “Asset Sale”) will be permitted;
(8) subject to Section 3.03(a) of the Security Agreement, the Borrower may (a) convert into a corporation, partnership, limited partnership, limited liability company or trust organized or existing under the laws of the jurisdiction of organization of the Borrower or the laws of a jurisdiction in the United States and (b) change its name;
(9) the Loan Parties and their respective Subsidiaries may consummate the Transactions; and
(vii10) the Borrower commencement of any proceedings against any Subsidiary under Debtor Relief Laws to the extent such proceedings do not constitute an Event of Default under Section 8.01(6) will be permitted. Notwithstanding anything in this Section 7.03 and subject to the Collateral and Guarantee Requirement, in the event a Loan Party changes its Restricted Subsidiaries (i) name as it appears in official filings in its jurisdiction of incorporation, organization or formation or (ii) chief place of business or chief executive office, each Loan Party shall within sixty (60) days (or such longer time period as may consummate be agreed by the AcquisitionCollateral Agent) after any such change, give the Collateral Agent written notice of such change.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Alvotech), Term Loan Credit Agreement (Alvotech)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary toamalgamate, merge into or dissolve, liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other Person to merge into or consolidate with it, or liquidate or dissolve (which, for than as part of the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formTransactions), except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) Holdings or the BorrowerBorrower (including a merger, the purpose of which is to reorganize Holdings or the Borrower into a new jurisdiction within Canada or the United States); provided that Holdings or the Borrower Borrower, as applicable, shall be the continuing or surviving Person, Person or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party (other than Holdings or the Borrower) is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person unless the resulting Investment made in connection with a Loan Party merging or amalgamating with a Non-Loan Party shall otherwise be a Subsidiary Loan Party Restricted Investment permitted by Section 7.06 or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Permitted Investment;
(ii) (Ai) any Restricted Subsidiary that is not a Non-Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Non-Loan Party and Party, (Bii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve and (iii) Holdings, the Borrower or any Subsidiary may change its legal form if the Borrower if, with respect to clauses (ii) and (iii), Holdings determines in good faith that such action is in the best interests interest of the Borrower Holdings and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, Holdings will remain Holdings, the Borrower will remain the Borrower and a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Holdings, the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is a permitted Investment in must be a Restricted Subsidiary that is not Investment permitted by Section 7.06 or a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04Permitted Investment;
(ivd) so long as no Default has occurred and is continuing or would result therefrom, the Borrower may merge merge, amalgamate or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered JurisdictionCanada or any province or territory thereof, the United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have reaffirmedconfirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to the applicable Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation, shall have by an agreement in form and substance amendment to or restatement of or assignment of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation complies and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger, amalgamation or consolidation involving a Loan Party), any Restricted Subsidiary may merge, amalgamate or consolidate or amalgamate with any other Person in order to effect an a Restricted Investment permitted pursuant to Section 7.047.06 or a Permitted Investment; provided that the continuing or surviving Person shall be the Borrower or a Restricted SubsidiarySubsidiary of Holdings, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any Restricted Subsidiary may effect so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, consolidation, amalgamation, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05;
(g) so long as no Default has occurred and is continuing or would result therefrom, Holdings may merge, amalgamate or consolidate with any other Person; provided that (i) Holdings shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings (any such Person, the “Successor Holdings”), (A) the Successor Holdings shall be an entity organized or existing under the Laws of Canada or any province or territory thereof, the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Holdings’ obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to the applicable Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Holdings’ obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation, shall have by an amendment to or restatement of or assignment of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Holdings’ obligations under the Loan Documents, and (F) Holdings shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger, amalgamation or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings under this Agreement; and
(viih) so long as no Default has occurred and is continuing or would result therefrom, Holdings may merge, amalgamate or consolidate with the Borrower; provided that the Borrower shall be the continuing or surviving Person (and its Restricted Subsidiaries may consummate all references to “Holdings” in this Agreement and any other Loan Document shall be deemed to refer to the AcquisitionBorrower, as applicable).
Appears in 2 contracts
Sources: Term Loan Credit Agreement (BRP Inc.), Term Loan Credit Agreement (BRP Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that, so long as no Event of Default exists or would result therefrom:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the Borrower; provided Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction), provided, that the Borrower shall be the continuing or surviving PersonPerson or the surviving Person shall expressly assume the obligations of the Borrower pursuant to documents reasonably acceptable to the Administrative Agent, or (Bii) any one or more other Restricted Subsidiaries; provided , provided, that when any Subsidiary Loan Party Guarantor is merging or consolidating with another Restricted Subsidiary Subsidiary, (1A) the Guarantor shall be the continuing or surviving Person shall or (B) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary Loan Party or (2) if the continuing or surviving Person which is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04in accordance with Sections 7.02 and 7.03;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Subsidiary may (if the perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the LendersLenders (it being understood that in the case of any dissolution of a Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Subsidiary that is a Guarantor; and in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided provided, that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must either be the Borrower or a Loan Party, Guarantor or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(vd) any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided provided, that (i) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted its Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;Section 6.12 or (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02; and
(vie) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
7.05 (vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionother than Section 7.05(d)(i)).
Appears in 2 contracts
Sources: Credit Agreement (At Home Group Inc.), Credit Agreement (At Home Group Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary toamalgamate, merge into or dissolve, liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate amalgamate with (Ai) the BorrowerBorrower (including a merger or amalgamation, the purpose of which is to reorganize the Borrower in a new jurisdiction); provided that (x) the Borrower shall be the continuing or surviving Person, and (y) such merger or amalgamation does not result in the Borrower ceasing to be incorporated under the Laws of Canada or any province thereof or (Bii) any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating amalgamating with another Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (ii) (A) any Subsidiary may liquidate or dissolve, (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form form, in each case, if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders and (iii) the Borrower may change its legal form if it determines in good faith that such action is in the best interests of the Borrower and its Subsidiaries, and the Administrative Agent reasonably determines it is not disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate amalgamate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation amalgamation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1A) the Successor Borrower shall be an entity organized or existing under the laws of a Covered JurisdictionCanada or any province or territory thereof, (2B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidationamalgamation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory by a supplement to the Administrative Agent, Guaranty confirmed that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the other party to such merger or amalgamation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or amalgamation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies amalgamation and such supplement to this Agreement or any other Loan Document comply with this Agreement; provided, further, that together with such other documents described in paragraph (yd) if such Person is not a Loan Party, no Event of Default (or, the definition of “Collateral and Guarantee Requirement” with respect to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) Successor Borrower that the Administrative Agent may reasonably request provided further that if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12Section 6.11;
(vif) so long as no Default exists or would result therefrom and no material assets have been transferred to such Subsidiaries from the Borrower or any Restricted Subsidiary thereof from the Closing Date to the date of such dissolution or liquidation, the Subsidiaries listed on Schedule 7.04(f) may effect be dissolved or liquidated;
(g) the Acquisition may be consummated; and
(h) so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries , may consummate the Acquisitionbe effected.
Appears in 2 contracts
Sources: First Lien Credit Agreement (SMART Technologies Inc.), Second Lien Credit Agreement (SMART Technologies Inc.)
Fundamental Changes. The Borrower will notNeither Parent nor any of its Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) Parent or any other Borrower (including a merger, the Borrowerpurpose of which is to reorganize such Borrower into a new jurisdiction or to form or collapse a holding company structure); provided provided, that the Parent or such other Borrower shall be the continuing or surviving Person, Person and shall continue to be organized under the laws of the United States or any state thereof; or (B) any one ii)one or more other Restricted SubsidiariesSubsidiaries that is not a Borrower; provided provided, that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary under this clause (1) a), a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into (x) any other Restricted Subsidiary that is not a Loan Party or (y) any other Subsidiary that is a Loan Party; provided that the Loan Party shall be the continuing or surviving Person; and (Bii) any Restricted Subsidiary may liquidate liquidate, wind-up or dissolve or change into its legal form parent if the Borrower Parent determines in good faith that such action is in the best interests interest of the Borrower Parent and its Restricted Subsidiaries as a whole and is not materially disadvantageous to the Lenders;
(iiic) Parent or any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Parent or another any Restricted Subsidiary; provided provided, that if the transferor in such a transaction is a Loan PartyBorrower or a Guarantor, then (A) the transferee must be Parent, a Loan PartyBorrower or a Guarantor and; provided, (B) to the extent constituting an Investmentfurther, that at least one Borrower shall remain after such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04transaction;
(ivd) the so long as no Event of Default exists or would result therefrom, Parent or any other Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided provided, that (A) the Borrower i)Parent or such other Borrower, as applicable, shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Company”) is not Parent or such other Borrower”), (1) the A)the Successor Borrower Company shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state or commonwealth thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Parent or such other Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) in the case of a Successor Company for a Borrower, each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, confirmed that its Guarantee of and grant of any Liens as security for its pledges and other obligations under the Obligations Collateral Documents shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, including, to the extent reasonably requested by the Administrative Agent, by executing amendments or supplements to the Security Agreement, any Mortgage and any other Collateral Documents, and (4D) the Borrower Parent shall have delivered to the Administrative Agent a certificate of a Responsible Officer such certificates and an opinion of counsel, each stating that such merger or consolidation complies with this Agreementother documentation as reasonably requested by the Administrative Agent; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the applicable Borrower under this Agreement;
(e) so long as no Event of Default exists or would result therefrom, a Guarantor may merge or consolidate with any other Person; provided, that (i) such Guarantor shall be the continuing or surviving corporation or (ii) if the Successor Company is not such Guarantor, (A) the Successor Company shall be an entity organized or existing under the laws of the United States, any state or commonwealth thereof, the District of Columbia or any territory thereof and (B) the Successor Company shall expressly assume all the obligations of such Guarantor under this Agreement and the other Loan DocumentsDocuments to which such Guarantor is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent; provided, further, that if the Borrower will use commercially reasonable efforts to provide any documentation and other information about foregoing are satisfied, the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that Company will succeed to, and be substituted for, such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities Guarantor under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Actthis Agreement;
(vf) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary other than a Borrower may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.05; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;and
(vig) so long as no Event of Default exists or would result therefrom, any Restricted Subsidiary other than a Borrower may effect consummate a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition7.04.
Appears in 2 contracts
Sources: Credit Agreement (Uniti Group Inc.), Credit Agreement (Uniti Group Inc.)
Fundamental Changes. The Such Borrower will not, and nor will not it permit any other of its Restricted Subsidiary Subsidiaries to, merge into or amalgamate or consolidate with any other Person, or permit any other Person to merge into or consolidate or amalgamate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)dissolve, except that:
: (ia) any Subsidiary may merge with the Parent Borrower in a transaction in which the Parent Borrower is the surviving Person (or in the case of a transitory merger where the surviving Person assumes the Obligations in a manner reasonably acceptable to the Administrative Agent), (b) any Restricted Subsidiary may merge or consolidate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party in a transaction in which the surviving entity is merging or consolidating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or and (2x) if the continuing or surviving Person any party to such merger is not a Domestic Subsidiary Loan Party, the acquisition of such surviving entity is a Domestic Subsidiary Loan Party (or the surviving Person assumes the Obligations of such non-surviving Domestic Subsidiary Loan Party in a manner reasonably acceptable to the Administrative Agent or such transaction shall constitute an Investment permitted by Section 6.04) and (y) if no party to such merger is a Domestic Subsidiary Loan Party but any party to such merger is a Foreign Subsidiary Loan Party, the surviving entity is a Foreign Subsidiary Loan Party (or the surviving Person assumes the Obligations of such non-surviving Foreign Subsidiary Loan Party in a manner reasonably acceptable to the Administrative Agent or such transaction shall constitute an Investment permitted by Section 6.04), (c) any Person may merge into the Parent Borrower in an Investment permitted by Section 6.04 in which the Parent Borrower is the surviving Person, (d) any Person may merge with a Restricted Subsidiary in an Investment permitted by Section 6.04 in which the surviving entity is otherwise a Subsidiary and (x) if any party to such merger is a Domestic Subsidiary Loan Party, the surviving entity is a Domestic Subsidiary Loan Party (or the surviving Person assumes the Obligations of such non-surviving Domestic Subsidiary Loan Party in a manner reasonably acceptable to the Administrative Agent or such transaction shall constitute an Investment permitted under by Section 7.04;
6.04) and (iiy) if no party to such merger is a Domestic Subsidiary Loan Party but any party to such merger is a Foreign Subsidiary Loan Party, the surviving entity is a Foreign Subsidiary Loan Party (Aor the surviving Person assumes the Obligations of such non-surviving Foreign Subsidiary Loan Party in a manner reasonably acceptable to the Administrative Agent or such transaction shall constitute an Investment permitted by Section 6.04); (e) any Restricted Subsidiary that is not (other than a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (BBorrower) any Restricted Subsidiary may liquidate or dissolve or change its in legal form if the Parent Borrower determines in good faith that such action liquidation or dissolution or change in legal form is in the best interests of the Parent Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
Lenders (iiiit being understood that any release and re-taking of any Collateral or Guaranty in connection with such change in legal form is not materially disadvantageous); (f) any Restricted in connection with the Disposition of a Subsidiary (other than a Borrower) or its assets permitted by Section 6.05, such Subsidiary may make a Disposition of all merge with or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) into any other Person; provided that (Ag) any Foreign Subsidiary may merge or amalgamate with a Foreign Borrower or any other Foreign Subsidiary in a transaction in which the Foreign Borrower shall be or such Foreign Subsidiary is the continuing or surviving Person (or (B) if in the case of a transitory merger where the surviving Person formed by or surviving any such merger or consolidation is not assumes the Obligations of the Foreign Borrower or is such other Foreign Subsidiary in a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance manner reasonably satisfactory acceptable to the Administrative Agent) and (h) any merger, amalgamation, consolidation, liquidation or dissolution by the Parent Borrower or its Restricted Subsidiaries in connection with the consummation of the transactions described in the PWC Steps Memo (3or implied thereunder as necessary to implement the transactions described therein) each Loan Party shall be permitted. The Parent Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the Borrower, unless it is type conducted by the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form Parent Borrower and substance reasonably satisfactory to its Subsidiaries on the Administrative Agent, that its Guarantee date of and grant execution of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counselbusinesses reasonably related, each stating that such merger complementary or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisitionancillary thereto.
Appears in 2 contracts
Sources: Credit Agreement (Darling Ingredients Inc.), Credit Agreement (Darling International Inc)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) any Borrower (including a merger, the Borrowerpurpose of which is to reorganize such Borrower into a new jurisdiction); provided that the (x) such Borrower shall be the continuing or surviving Person, and (y) such merger does not result in a Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia or (Bii) any one or more other Restricted SubsidiariesSubsidiaries (other than any Borrower); provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary, a Subsidiary (1) Guarantor shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) (A) any Restricted Subsidiary may liquidate or dissolve or (B) any Borrower or any Subsidiary may change its legal form if the such Borrower or Subsidiary determines in good faith that such action is in the best interests of the such Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the interests of the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the a Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) the so long as no Default exists or would result therefrom, Holdings and each Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) Holdings or such Borrower, as the Borrower case may be, shall be the continuing or surviving Person entity or (Bii) if the Person formed by or surviving any such merger or consolidation is not Holdings or such Borrower, as the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) case may be (any such Person, the “Successor BorrowerLoan Party”), (1A) the Successor Borrower Loan Party shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Loan Party shall expressly assume all the obligations of Holdings or such Borrower, as the Borrower case may be, under this Agreement and the other Loan Documents to which Holdings or such Borrower, as the Borrower case may be, is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedby a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Loan Party’s obligations under this Agreement, pursuant (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Loan Party’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerLoan Party’s obligations under this Agreement Agreement, and (4F) Holdings or the Borrower Lead Borrower, as applicable, shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies and such supplement to this Agreement or any other Loan Document comply with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Loan Party will succeed to, and be substituted for, the Borrower applicable Loan Party under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 and 6.12to the extent applicable;
(vif) any Restricted Subsidiary the Merger may effect be consummated; and
(g) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 2 contracts
Sources: Credit Agreement (Dominion Textile (Usa), L.L.C.), Credit Agreement (Dominion Textile (Usa), L.L.C.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving Person, Person or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) that is not a Loan Party, the Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary person shall promptly thereafter become Loan Party; provided further, that any security interests granted to the acquisition Administrative Agent or the Mexican Collateral Agent, as applicable, for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such Subsidiary Loan Party merger, consolidation, dissolution or liquidation) and all actions required to maintain such perfected status have been take or will promptly be taken, in each case, as required by such surviving Restricted Subsidiary is otherwise permitted under Section 7.046.11 to the extent required pursuant to the Collateral and Guarantee Requirement and subject to the Agreed Security Principles;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party, (Bii) any Restricted Subsidiary may liquidate or dissolve or and (iii) any Restricted Subsidiary may change its legal form if if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its the Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders (it being understood that 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);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be or become a Loan Party, Subsidiary Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower7.02(e)) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.047.03, respectively;
(ivd) so long as no Event of Default has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition disposition of all or substantially all of the Borrower’s assets, if is the transferee of such assets) (any such Person, the a “Successor Borrower”), ):
(1A) the Successor Borrower shall will:
(1) be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia,
(2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative AgentAgent and the Borrower, and
(3) deliver to the Administrative Agent (I) a certificate of a Responsible Officer of the Successor Borrower stating that such merger or consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) comply with this Agreement and (II) and legal opinions of counsel to the Successor Borrower including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent;
(B) substantially contemporaneously with such transaction (or at a later date as agreed by the Administrative Agent),
(1) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedwill by a supplement to the Guaranty (or in another form reasonably satisfactory to the Administrative Agent and the Borrower) reaffirm its Guaranty of the Obligations (including the Successor Borrower’s obligations under this Agreement),
(2) each Loan Party, pursuant unless it is the other party to an agreement such merger or consolidation, will, by a supplement to the applicable Collateral Documents (or in another form and substance reasonably satisfactory to the Administrative Agent), confirm its grant or pledge thereunder,
(3) if reasonably requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, will, by an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent and the Borrower), confirm that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement and Agreement;
(4C) after giving pro forma effect to such incurrence, the Borrower would be permitted to incur at least $1.00 of Permitted Ratio Debt; and
(D) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have delivered received at least two (2) Business Days prior to the consummation of such transaction all documentation and other information in respect of the Successor Borrower required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act
(E) provided further that (x) with respect to each of the foregoing Sections 7.04(d)(i) and 7.04(d)(ii) that any security interests granted to the Administrative Agent a certificate or the Mexican Collateral Agent, as applicable, for the benefit of a Responsible Officer the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and an opinion of counseleffect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been taken or will promptly be taken, in each stating that such merger or consolidation complies with this Agreement; providedcase, furtheras required by Section 6.11 to the extent required pursuant to the Collateral and Guarantee Requirement and subject to the Agreed Security Principles, that and (y) if such Person is not a Loan Party, no Event of Default (or, with respect to the extent related to a Permitted Acquisition or any Investment not prohibited by foregoing Section 7.047.04(d)(ii), no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements of that section and this proviso are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the such surviving Person’s Subsidiaries that are Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12;Guarantee Requirement and subject to the Agreed Security Principles; and
(vif) any Restricted Subsidiary may effect so long as no Event of Default has occurred and is continuing or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation to effect Disposition may be consummated for the purpose of effecting a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its , a Restricted Subsidiaries may consummate the AcquisitionPayment permitted pursuant to Section 7.06 or a Permitted Acquisition or other Investment permitted by Section 7.02.
Appears in 2 contracts
Sources: Credit Agreement (Playa Hotels & Resorts N.V.), Restatement Agreement (Playa Hotels & Resorts N.V.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(i) any Restricted Subsidiary may merge merge, amalgamate or consolidate with a Borrower (A) including a merger, the Borrowerpurpose of which is to reorganize a Borrower into a new jurisdiction in the United States); provided that the such Borrower (as a newly recognized entity) shall be the continuing or surviving Person, or Person and (Bii) any Restricted Subsidiary may merge, amalgamate or consolidate with one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve or a Borrower or any Subsidiary may change its legal form if the Borrower Parent determines in good faith that such action is in the best interests interest of the Borrower ▇▇▇▇▇ Group and its Restricted Subsidiaries and is if not materially disadvantageous to the LendersLenders (it being understood that in the case of any change in legal form, (x) any Borrower shall remain a Borrower and (y) a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Parent or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or 7.02 (Cother than clause (e) to of the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrowerdefinition of “Permitted Investments”) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.047.03, respectively;
(ivd) the so long as no Default exists or would result therefrom, a Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the such Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the a Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof, the District of Columbia or any territory thereof, (2B) the Successor Borrower Company shall expressly assume all the obligations of the such Borrower under this Agreement and the other Loan Documents to which the such Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerParty, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its obligations under the Loan Documents, pursuant including the Guarantee, shall continue to an agreement in form and substance reasonably satisfactory apply to the Administrative AgentSuccessor Company’s obligations under the Loan Agreements, (D) each Loan Party, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Security Documents confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement and the Loan Documents, (4E) the such Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition Agreement or any Investment Security Document does not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under conflict with this Agreement and (F) the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any Administrative Agent shall have received all documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of without limitation the USA PATRIOT ActAct reasonably requested by the Lenders; provided further that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, such Borrower under this Agreement;
(ve) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower a Restricted Subsidiary or a Restricted SubsidiaryBorrower, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 and 6.12;Section 6.14; and
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Keane Group, Inc.), Asset Based Revolving Credit Agreement (Keane Group, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit any other Person to merge into Dispose of (whether in one transaction or consolidate with it, in a series of transactions) all or liquidate substantially all of the assets (whether now owned or dissolve (which, for the avoidance hereafter acquired) of doubt, shall not restrict the Borrower and its Restricted Subsidiaries, taken as a whole, to or in favor of any Restricted Subsidiary from changing its organizational form)Person, except that, so long as no Default exists or would result therefrom:
(ia) any Restricted Subsidiary Relevant Party may merge or consolidate with (A) the Borrowerone or more Loan Parties; provided that if the Borrower is a party to such merger or consolidation, it shall be the continuing or surviving Person, or (B) any one or more other Restricted Subsidiaries; provided that when any Subsidiary and otherwise a Loan Party is merging or consolidating with another Restricted Subsidiary (1) shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ab) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with the Borrower or into any other Restricted Subsidiary; provided that if the Borrower or a Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate is a party to such merger or dissolve consolidation, it shall be the continuing or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenderssurviving Person;
(iiic) any Restricted Subsidiary Loan Party may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then ;
(Ad) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted Investment in a any Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04;
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to(upon voluntary liquidation or otherwise) any other Person; provided that (A) to the Borrower shall be or any Restricted Subsidiary; and
(e) each of the continuing Borrower and any of its Restricted Subsidiaries may merge into or surviving consolidate with any Person other than the Borrower or any of its Subsidiaries; provided, however, that in each case, immediately after giving effect thereto (Bi) if in the Person formed by or surviving case of any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant party, the Borrower is the surviving Person and (ii) in the case of any other merger to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, which any Relevant Party (3) each Loan Party other than the Borrower) is a party, unless it such Relevant Party is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the AcquisitionPerson.
Appears in 2 contracts
Sources: Credit Agreement (Western Refining Logistics, LP), Credit Agreement (Western Refining Logistics, LP)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any other Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)dissolve, except that:
(i) any Restricted Subsidiary may merge merge, consolidate or consolidate amalgamate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (B) in the case of any Restricted Subsidiary, any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging merging, consolidating or consolidating amalgamating with another Restricted Subsidiary (1) the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.046.04 (other than Section 6.04(c));
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge merge, consolidate or consolidate amalgamate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its the Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.046.04;
(iv) the Borrower may merge merge, consolidate or consolidate amalgamate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger merger, consolidation or consolidation amalgamation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any State thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger merger, consolidation or consolidationamalgamation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of of, and grant of any Liens as security for for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, provided further that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist exists after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, provided further that the Borrower will use commercially reasonable efforts shall have delivered to provide the Administrative Agent any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent or any Lender or LC Issuer through the Administrative Agent that the Administrative Agent or such Lender or LC Issuer Lender, as applicable, shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and antiAnti-money laundering rules and regulationsMoney Laundering Laws, including Title III of without limitation the USA PATRIOT ActAct (and the results thereof shall be satisfactory to the Administrative Agent or such Lender, as applicable);
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.046.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 5.11 and 6.12;5.12 and if the other party to such transaction is not a Loan Party, no Default exists after giving effect to such transaction; and
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.056.05 (other than Section 6.05(e)); andprovided that if the other party to such transaction is not a Loan Party, no Default exists after giving effect to the transaction.
(viib) The Borrower will not, and will not permit any Restricted Subsidiary to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its the Restricted Subsidiaries may consummate on the AcquisitionEffective Date and businesses activities which are extensions thereof or otherwise incidental, reasonably related or ancillary to any of the foregoing.
Appears in 2 contracts
Sources: Credit Agreement (Greenhill & Co Inc), Credit Agreement (Greenhill & Co Inc)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, amalgamate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that, so long as (other than in the case of clause (e) below) no Event of Default would result therefrom:
(ia) any Restricted Subsidiary (or any other Person) may merge merge, amalgamate or consolidate with (Ai) the BorrowerBorrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction in any State of the United States of America); provided that the Borrower shall be the continuing or surviving Person, Person or the surviving Person shall expressly assume the obligations of the Borrower pursuant to documents reasonably acceptable to the Administrative Agent or (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party Guarantor is merging or consolidating amalgamating with another Restricted Subsidiary that is not a Loan Party (1A) the Guarantor shall be the continuing or surviving Person shall Person, (B) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary Loan Party or (2) if the continuing or surviving Person which is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively and (C) to the extent constituting a Disposition, such surviving Restricted Subsidiary is otherwise Disposition must be permitted under Section 7.04hereunder;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) any Restricted Subsidiary may liquidate or dissolve dissolve, or the Borrower or any Restricted Subsidiary may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form if the Borrower determines in good faith that such action is in the best interests interest of the Borrower and its the Restricted Subsidiaries taken as a whole and is not materially disadvantageous to the LendersLenders in any material respect (it being understood that in the case of any liquidation or dissolution of a Restricted Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such liquidation or dissolution transfer its assets to another Restricted Subsidiary that is a Loan Party unless such Disposition of assets is permitted hereunder (other than pursuant to Section 7.05(d)(A)); and in the case of any change in legal form, a Restricted Subsidiary that is a Loan Party will remain a Loan Party unless such Loan Party is otherwise permitted to cease being a Loan Party hereunder);
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another to any Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Party and (Bii) to the extent constituting an Investment, such Investment is a must be permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with by Section 7.04 or 7.02 (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with than Section 7.047.02(e));
(iv) the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Act;
(vd) any Restricted Subsidiary may merge, amalgamate or consolidate with, or amalgamate with dissolve into, any other Person in order to effect an Investment permitted pursuant to Section 7.047.02 (other than Section 7.02(e)); provided that (i) the continuing or surviving Person shall be shall, to the Borrower or a Restricted Subsidiaryextent subject to the terms hereof, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 Section 6.12, (ii) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02 (other than Section 7.02(e)) and 6.12(iii) to the extent constituting a Disposition, such Disposition must be permitted hereunder;
(vie) any Restricted Subsidiary may effect a mergermerge, dissolutiondissolve, liquidation consolidation liquidate, amalgamate, consolidate with or amalgamation into another Person or Dispose of all or substantially all of its assets in order to effect a Disposition permitted pursuant to Section 7.057.05 (other than Section 7.05(d)(A));
(f) any Investment permitted by Section 7.02 (other than Section 7.02(e)) may be structured as a merger, consolidation or amalgamation;
(g) the Borrower or any Restricted Subsidiary may consummate any Permitted Restructuring Transaction; and
(viih) the Borrower and its Restricted Subsidiaries may consummate the Acquisitiona transaction in compliance with Section 10.24 under this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Visteon Corp), Credit Agreement (Visteon Corp)
Fundamental Changes. The Borrower will not, and will not permit any other Restricted Subsidiary to, merge into or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve (whichincluding, for the avoidance of doubtin each case, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational formpursuant to a Division), except that:
(i) any Restricted Subsidiary may merge merge, consolidate or consolidate amalgamate with (Ax) the Borrower; provided that the Borrower shall be the continuing or surviving Person, Person or (By) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging merging, consolidating or consolidating amalgamating with another Restricted Subsidiary either (1A) the continuing or surviving Person shall be a Subsidiary Loan Party or (2B) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.046.04;
(ii) (A) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (B) any Restricted Subsidiary may liquidate or dissolve or change its legal form or undertake similar transactions if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted the Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then either (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is a permitted must be an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.04 6.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is a permitted an Investment in a Restricted Subsidiary that is not a Loan Party in accordance with permitted by Section 7.046.04;
(iv) the Borrower may merge merge, amalgamate or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, amalgamation or consolidation, shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of of, and grant of any Liens as security for for, the Secured Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation complies with this Agreement; provided, further, that (yx) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist exists after giving effect to such merger merger, amalgamation or consolidation and (zy) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will agrees to use commercially reasonable efforts to provide any documentation and other information about the such Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActPatriot Act and the Beneficial Ownership Regulation;
(v) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.046.04; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 5.11 and 6.12;5.12; and
(vi) any Restricted Subsidiary may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition6.05.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Vacasa, Inc.), Revolving Credit Agreement (Vacasa, Inc.)
Fundamental Changes. The Borrower will notNeither Holdings nor any of the Restricted Subsidiaries shall merge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary (other than the Borrower) may merge merge, amalgamate or consolidate with (Ai) Holdings (including a merger, the Borrowerpurpose of which is to reorganize Holdings into a new jurisdiction); provided that the Borrower Holdings shall be the continuing or surviving PersonPerson and such merger does not result in Holdings ceasing to be a corporation, partnership or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia, (Bii) any one or more other Restricted Subsidiaries; provided that when any Subsidiary Person that is a Loan Party is merging or consolidating with another a Restricted Subsidiary (1) Subsidiary, a Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party Person, or (2iii) if in order to consummate a Permitted Tax Restructuring subject to complying with the continuing or surviving Person is not a Subsidiary Loan Party, express terms and conditions of the acquisition definition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04“Permitted Tax Restructuring”;
(ii) (Ai) any Restricted Subsidiary (other than the Borrower) that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and Party; (Bii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form if the Borrower (x) Holdings determines in good faith that such action is in the best interests interest of the Borrower Holdings and its Restricted Subsidiaries and is not materially disadvantageous to the LendersLenders or the Collateral Agent and (y) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Sections 7.02 (other than 7.02(e) or (h)) or 7.05 or, in the case of any such business, discontinued, shall be transferred to otherwise owned or conducted by another Loan Party after giving effect to such liquidation or dissolution (it being understood that in the case of any change in legal form, a Restricted Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder), and (iii) Holdings or any Restricted Subsidiary may change its legal form if Holdings determines in good faith that such action is in the best interest of Holdings and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders or the Collateral Agent and all actions are taken to maintain the perfection of the Collateral Agent’s Liens on the Collateral);
(iiic) any Restricted Subsidiary (other than the Borrower) may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower Holdings or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan PartyGuarantor, then (Ai) the transferee must be a Loan Party, Guarantor or the Borrower or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan PartySections 7.02 and 7.03, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower shall be the continuing or surviving Person corporation or (Bii) if the Person formed by or surviving any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor BorrowerCompany”), (1A) the Successor Borrower Company shall be an entity organized or existing under the laws Laws of a Covered Jurisdictionthe United States, any state thereof or the District of Columbia, (2B) the Successor Borrower Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger or consolidation, shall have reaffirmedconfirmed that its Guaranty shall apply to the Successor Company’s obligations under the Loan Documents, pursuant (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and/or other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (E) if requested by the Administrative Agent, each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerCompany’s obligations under this Agreement the Loan Documents, and (4F) the Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with and such supplement to this Agreement or any Collateral Document preserves the enforceability of this Agreement, the Guaranty and the Collateral Documents and the perfection of the Liens under the Collateral Documents; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Company will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge, merge or consolidate or amalgamate with any other Person (other than Holdings) in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be a Restricted Subsidiary (or, if such transaction involves the Borrower, the Borrower or a shall survive), and any such Restricted Subsidiary, which together with each of the Restricted Subsidiaries, Subsidiary shall have complied with the requirements of Sections Section 6.11 to the extent required pursuant to the Collateral and 6.12Guarantee Requirement;
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(viig) the Borrower Transactions and its Restricted Subsidiaries any transactions as contemplated by the Bankruptcy Plan may consummate the Acquisitionbe consummated.
Appears in 2 contracts
Sources: Credit Agreement (iHeartMedia, Inc.), Credit Agreement (iHeartMedia, Inc.)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge liquidate, consolidate or amalgamate with or into or consolidate with any other another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(a) (i) any Restricted Subsidiary may merge or consolidate amalgamate with any Loan Party (other than a Caribbean Party) (including a merger or amalgamation, the purpose of which is to reorganize such Loan Party into a new jurisdiction); provided that (A) the Borrower; provided that the Borrower a Loan Party shall be the continuing or surviving Person, or (B) any one if a Borrower is a party to such merger or more other Restricted Subsidiaries; provided that when any Subsidiary amalgamation, then such Borrower shall be the continuing and surviving Person, (C) if Holdings, the Lead Borrower, a Loan Party which is merging a Domestic Subsidiary, or consolidating with another Restricted a Domestic Subsidiary is party to such merger or amalgamation, then Holdings, the Lead Borrower, such Loan Party, or a Domestic Subsidiary will be the continuing or surviving Person, and (1D) if a Loan Party which is a Canadian Subsidiary is party to such merger or amalgamation, and none of Holdings, the Lead Borrower, any Loan Party which is a Domestic Subsidiary, nor any Domestic Subsidiary is party to such merger or amalgamation, then such Canadian Subsidiary which is a Guarantor shall be the continuing or surviving Person or (ii) any Restricted Subsidiary (other than a Loan Party that is a Domestic Subsidiary or a Canadian Subsidiary) may merge with any Caribbean Party (including a merger, the purpose of which is to reorganize such Loan Party into a new jurisdiction); provided that (A) such Caribbean Party shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person, (B) if a Caribbean Borrower is a party to such merger, then such Caribbean Borrower shall be the continuing and surviving Person is not a Subsidiary Loan Party, and (C) such Caribbean Party shall be incorporated under the acquisition Laws of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04an Approved Caribbean Jurisdiction;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (Bii) (A) any Restricted Subsidiary (other than any Borrower) may liquidate or dissolve or (B) any Borrower or any Subsidiary may change its legal form if the if, in each case, such Borrower or Subsidiary determines in good faith that such action is in the best interests of the such Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iiic) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the a Borrower or another Restricted Subsidiary; provided that (i) if the transferor in such a transaction is a Loan Party which is not a Caribbean Party, then the transferee must be a Loan Party (other than a Caribbean Party), (ii) if the transferor in such a transaction is a Caribbean Party, then the transferee must be a Loan Party and (iii) if the transferor in such a transaction is a Loan Party, then (A) the transferee must be a Loan Party, (B) to the extent constituting an Investment, such Investment is must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof which is a permitted Investment in a Restricted Subsidiary that is not a Loan Caribbean Party in accordance with Section 7.04Sections 7.02 and 7.03, respectively;
(ivd) the so long as no Default exists or would result therefrom, Holdings and each Borrower may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) Holdings or such Borrower, as the Borrower case may be, shall be the continuing or surviving Person entity or (Bii) if the Person formed by or surviving any such merger merger, amalgamation or consolidation is not Holdings or such Borrower, as the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) case may be (any such Person, the “Successor BorrowerLoan Party”), (1A) the Successor Borrower Loan Party shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof (except that, in the case of a Covered merger, amalgamation or consolidation of a Caribbean Borrower and not involving Holdings, the Lead Borrower, any other Borrower which is a Domestic Subsidiary, or any Loan Party which is a Domestic Subsidiary, the Successor Loan Party may be organized in an Approved Caribbean Jurisdiction), (2B) the Successor Borrower Loan Party shall expressly assume all the obligations of Holdings or such Borrower, as the Borrower case may be, under this Agreement and the other Loan Documents to which Holdings or such Borrower, as the Borrower case may be, is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (3C) each Loan Party other than the BorrowerGuarantor, unless it is the other party to such merger merger, amalgamation or consolidation, shall have reaffirmedby a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Loan Party’s obligations under this Agreement, pursuant (D) each Loan Party, unless it is the other party to such merger, amalgamation or consolidation, shall have by a supplement to the applicable Security Agreement confirmed that its obligations thereunder shall apply to the Successor Loan Party’s obligations under this Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger, amalgamation or consolidation, shall have by an agreement in form and substance amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent, ) confirmed that its Guarantee of and grant of any Liens as security for the Obligations obligations thereunder shall apply to the Successor BorrowerLoan Party’s obligations under this Agreement Agreement, and (4F) the Lead Borrower shall have delivered to the Administrative Agent a an officer’s certificate of a Responsible Officer and an opinion of counsel, each stating that such merger merger, amalgamation or consolidation complies and such supplement to this Agreement or any other Loan Document comply with this Agreement; provided, further, further that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower Loan Party will succeed to, and be substituted for, the Borrower applicable Loan Party under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT ActAgreement;
(ve) so long as no Default exists or would result therefrom, any Restricted Subsidiary may merge, consolidate merge or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 7.047.02; provided that the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections Section 6.11 and 6.12;to the extent applicable; and
(vif) any Restricted Subsidiary may effect so long as no Default exists or would result therefrom, a merger, amalgamation, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05; and
(vii) the Borrower and its Restricted Subsidiaries may consummate the Acquisition.
Appears in 2 contracts
Sources: Credit Agreement (Performance Food Group Co), Credit Agreement (Performance Food Group Co)
Fundamental Changes. The Borrower will notMerge, and will not permit any other Restricted Subsidiary todissolve, merge into or liquidate, consolidate with any other or into another Person, or permit Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any other Person to merge into or consolidate with it, or liquidate or dissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form)Person, except that:
(ia) any Restricted Subsidiary may merge or consolidate with (Ai) the a Borrower; , provided that the such Borrower shall be the continuing or surviving Person, or (Bii) any one or more other Restricted Subsidiaries; , provided that when any Restricted Subsidiary that is a Loan Party is merging or consolidating with another Restricted Subsidiary (1) Subsidiary, such Loan Party shall be the continuing or surviving Person shall be a Subsidiary Loan Party or (2) if the continuing or surviving Person is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary is otherwise permitted under Section 7.04Person;
(ii) (Ai) any Restricted Subsidiary that is not a Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party Party, and (ii) any Subsidiary of a Borrower may liquidate or dissolve and, any Restricted Subsidiary may change its legal form, in each case, only to the extent permitted by the Indenture Documentation and only so long as (A) the Lien on or security interest in any Collateral held by it under the Loan Documents shall remain in effect to the same extent as immediately prior to such change, and (B) with respect to any change in legal form, the Guarantee of the Obligations by such Restricted Subsidiary shall remain in effect to the same extent as immediately prior to such change;
(c) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders;
(iii) any Restricted Subsidiary may make a Disposition Dispose of all or substantially all of its assets (upon voluntary liquidation liquidation, dissolution or otherwise) to the Borrower or another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (Ai) the transferee must be a Loan Party, Party or (Bii) to the extent constituting an Investment, such Investment is must be a permitted Investment in a Restricted Subsidiary that which is not a Loan Party in accordance with Section 7.04 or 7.03 (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Partyother than Section 7.02 and Section 7.03(f)), such Disposition is for fair market value (as determined in good faith by the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 7.04respectively;
(ivd) the Borrower Representative may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (Ai) the Borrower Representative shall be the continuing or surviving Person or corporation and (Bii) if the Person formed by or surviving immediately before and immediately after giving Pro Forma Effect to any such merger or consolidation is not the Borrower or is a Person into which the Borrower has been liquidated (or, in connection with a Disposition of all or substantially all of the Borrower’s assets, if the transferee of such assets) (any such Person, the “Successor Borrower”), (1) the Successor Borrower shall be an entity organized or existing under the laws of a Covered Jurisdiction, (2) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agenttransactions related thereto, (3) each Loan Party other than the Borrower, unless it is the other party to such merger or consolidation, no Default shall have reaffirmed, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, that its Guarantee of and grant of any Liens as security for the Obligations shall apply to the Successor Borrower’s obligations under this Agreement and (4) the Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger or consolidation complies with this Agreement; provided, further, that (y) if such Person is not a Loan Party, no Event of Default (or, to the extent related to a Permitted Acquisition or any Investment not prohibited by Section 7.04, no Specified Event of Default) shall exist after giving effect to such merger or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, occurred and be substituted for, the Borrower under this Agreement and the other Loan Documents; provided, further, that the Borrower will use commercially reasonable efforts to provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by any Lender or LC Issuer through the Administrative Agent that such Lender or LC Issuer shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Title III of the USA PATRIOT Actcontinuing;
(ve) any Restricted Subsidiary may merge, consolidate or amalgamate merge with any other Person in order to effect an Investment permitted pursuant to Section 7.047.03 (other than Section 7.03(f)); provided that (i) the continuing or surviving Person shall be the Borrower or a Restricted Subsidiary, which together with each of the its Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 Section 6.11, (ii) if such Restricted Subsidiary is a Loan Party immediately prior to effecting such merger and 6.12;Investment, it remains a Loan Party and (iii) immediately before and immediately after giving Pro Forma Effect to any such merger and the transactions related thereto, no Default shall have occurred and be continuing; and
(vif) any Restricted Subsidiary may effect a merger, dissolution, liquidation liquidation, consolidation or amalgamation Disposition, the purpose of which is to effect the New Media Merger or a Disposition permitted pursuant to Section 7.05; and
7.05 (vii) the Borrower and its Restricted Subsidiaries other than Section 7.05(e)), may consummate the Acquisitionbe effected.
Appears in 2 contracts
Sources: Incremental Facility Amendment (Media General Inc), Credit Agreement (Media General Inc)