Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution. (b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 11 contracts
Sources: Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.)
Fundamental Changes. (a) The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: , (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entitycorporation, (ii) any Guarantor Subsidiary may merge into or consolidate with any Person Subsidiary in a transaction in which the surviving entity is or becomes a Guarantor; provided that wholly-owned Subsidiary and, if any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior party to such merger shall not be permitted unless also permitted by Section 8.04is a Subsidiary Loan Party, a Subsidiary Loan Party, (iii) any Restricted Subsidiary that is not may merge or consolidate with any other Person in order to effect a Guarantor Permitted Acquisition and (iv) any Subsidiary (other than the Borrower) may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), Lenders; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial material extent in any business other than businesses a Permitted Business.
(c) Holdings will not engage in any business or activity other than the ownership of all the outstanding shares of capital stock of the type conducted by Borrower and activities incidental thereto. Holdings will not own or acquire any assets (other than shares of capital stock of the Borrower, cash and Permitted Investments) or incur any liabilities (other than liabilities under the Loan Documents, obligations of Holdings in respect of Permitted Holdings Debt, obligations under any employment agreement, stock option plans or other benefit plans for management or employees of Holdings, the Borrower and its Subsidiaries on the Closing Date Subsidiaries, liabilities imposed by law, including tax liabilities, and ancillary, complementary or reasonably related thereto or (ii) change other liabilities incidental to its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower existence and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower permitted business and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionactivities).
Appears in 9 contracts
Sources: Credit Agreement (Dex Media East LLC), Credit Agreement (Donnelley R H Inc), Credit Agreement (Dex Media 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 dissolvedissolve (which, for the avoidance of doubt, shall not restrict the Borrower or any Restricted Subsidiary from changing its organizational form), 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 of may merge or consolidate with (A) the Borrower; provided that the Borrower may merge into a Loan Party in a transaction in which such 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 entityPerson 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) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iiiA) any Restricted Subsidiary that is not a Guarantor Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (xB) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders 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 (yC) 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 (other than a Loan Party), Person; provided that (1A) a Restricted Subsidiary is the Borrower shall be the continuing or surviving Person and or (2B) if the Person formed by or surviving any such merger or consolidation involving 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 Restricted Subsidiary immediately prior 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 shall not or consolidation and (z) if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be permitted unless also permitted by Section 8.04; (iv) 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 merge, consolidate or amalgamate with any other Person in connection with a Permitted Acquisition, order to effect an Investment permitted pursuant to Section 7.04; provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may Person shall be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that , which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 6.11 and 6.12;
(xvi) any Restricted Subsidiary may change its fiscal year effect a merger, dissolution, liquidation consolidation or amalgamation to conform effect a Disposition permitted pursuant to the Fiscal Year of the Borrower and Section 7.05; and
(y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayedvii) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by consummate the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionAcquisition.
Appears in 8 contracts
Sources: Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of related transactions) all or substantially all of its assets, or all or substantially all of the stock of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(i) any Restricted Subsidiary of Person may merge or be consolidated with or into the Borrower may merge into a Loan Party in a transaction in which such Loan Party the Borrower is the continuing or surviving entity, Person;
(ii) any Guarantor Person (other than the Borrower) may merge into or consolidate with or into any Person Restricted Subsidiary in a transaction in which the surviving entity is or becomes a GuarantorRestricted Subsidiary; provided that any that, if such merger Person is a Subsidiary Guarantor, the surviving entity is the Borrower or consolidation involving is or substantially concurrently becomes a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, Guarantor;
(iii) any merger, consolidation, Disposition, liquidation or dissolution not prohibited by Sections 6.04, 6.05 and 6.11 shall be permitted;
(iv) any Restricted Subsidiary that is not a Guarantor may Dispose of its assets, and the Borrower or any Restricted Subsidiary may Dispose of any stock of any of its Restricted Subsidiaries, in each case to the Borrower or to another Restricted Subsidiary; and
(xv) any Restricted Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionLenders.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 7 contracts
Sources: Incremental Assumption Agreement (Match Group, Inc.), Credit Agreement (Match Group, Inc.), Incremental Assumption Agreement and Amendment No. 1 (Match Group, Inc.)
Fundamental Changes. Neither the Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person (including, in each case, pursuant to a Delaware LLC Division), except that:
(a) The Borrower will not, and will not permit any Restricted Subsidiary tomay merge, merge into amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving Person 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 (ii) 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 permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: ;
(i) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor Loan Party may merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (xii) any 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 liquidation or dissolution action is in the best interests interest of the Borrower and is its Subsidiaries and if not materially disadvantageous to the Lenders Lenders;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (yii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary that is not a Loan Party in accordance with Sections 7.02 and 7.03, respectively;
(d) (I) so long as no Event of Default under Sections 8.01(a) or (f) with respect to the Borrower exists or will result therefrom, the Borrower may merge or consolidate with any other Person (other than a Loan Party), Person; provided that (1i) a Restricted Subsidiary is the Borrower shall be the continuing or surviving corporation or (ii) if the Person and (2) formed by or surviving any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to the Borrower (any such merger shall not be permitted unless also permitted by Section 8.04; Person, the “Successor Borrower”), (ivA) the Successor Borrower shall be an entity organized or existing under the Laws of the United States, any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if state thereof or the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any District of its Restricted Subsidiaries toColumbia, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayedB) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Successor Borrower shall have entered into an amendment to this Agreement with expressly assume all the Administrative Agent (which amendment shall not require the consent obligations of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and the other Loan Documents to otherwise appropriately update which the terms hereof Borrower is a party pursuant to a supplement hereto or thereto in light form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under the Loan Documents, (E) [reserved], and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate, stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document preserves the enforceability of such change in Fiscal Year this Agreement, the Guaranty and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit Collateral Documents and the consummation perfection of the Transaction.Liens under the Collateral Documents; provided further that if the foregoing are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement; and
Appears in 7 contracts
Sources: Credit Agreement (Medline Inc.), Credit Agreement (Medline Inc.), Credit Agreement (Medline Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Borrower and its Restricted Subsidiaries, taken as a whole, to or in favor of any Person, except that, if no Default exists or would immediately result therefrom:
(a) The any Subsidiary may merge or consolidate with (i) the Borrower, provided that the Borrower will notshall be the continuing or surviving Person or (ii) any one or more other Subsidiaries, and will not permit provided that (A) when any wholly-owned Subsidiary is merging with another Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving Person, (B) when any Restricted Subsidiary tois merging with any other Subsidiary, the continuing or surviving Person (unless such surviving Person could otherwise be designated an Unrestricted Subsidiary hereunder) shall be a Restricted Subsidiary, (C) when any Foreign Subsidiary is merging with any Domestic Subsidiary, the continuing or surviving Person shall be the Domestic Subsidiary and (D) when any Guarantor is merging with any other Subsidiary, the continuing or surviving Person shall be a Guarantor (and shall not be a Specified Subsidiary);
(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Subsidiary; provided that (i) if the transferor in such a transaction is a Restricted Subsidiary, then the transferee must either be the Borrower or another Restricted Subsidiary (unless such Disposition would otherwise be permitted as an Investment in an Unrestricted Subsidiary), (ii) if the transferor is a Domestic Subsidiary, then the transferee must either be the Borrower or another Domestic Subsidiary and (iii) if the transferor is a Guarantor, then the transferee must either be the Borrower or another Guarantor (and shall not be a Specified Subsidiary);
(c) the Borrower and any Restricted Subsidiary 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, 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 of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the Borrower or the Restricted Subsidiary, as applicable, is the surviving entity is or becomes a Guarantorcontinuing Person; provided that any that, (i) the Borrower may not merge or consolidate with a Restricted Subsidiary unless the Borrower is the surviving or continuing Person and (ii) such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by under Section 8.04, 7.02(n) hereof; and
(iiid) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party)and the assets, provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or if any, of any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that so liquidated or dissolved are transferred (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a another Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent to a Guarantor (that is not to be unreasonably withheld, conditioned or delayeda Specified Subsidiary) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of if such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionliquidated or dissolved Restricted Subsidiary is a Guarantor.
Appears in 6 contracts
Sources: Credit Agreement (Peabody Energy Corp), Credit Agreement (Peabody Energy Corp), Credit Agreement (Peabody Energy Corp)
Fundamental Changes. Neither the Borrower nor any of the Restricted Subsidiaries shall merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) The Borrower will not, and will not permit any Restricted Subsidiary tomay merge, merge into amalgamate or consolidate with (i) the Borrower (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 or (ii) one or more other Restricted Subsidiaries; provided that when any other Person that is a Loan Party is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: ;
(i) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor Loan Party may merge, amalgamate or consolidate with or into any other Subsidiary that is not a Loan Party and (xii) any 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 liquidation or dissolution action is in the best interests interest of the Borrower and is its Subsidiaries and if not materially disadvantageous to the Lenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or the Borrower or (yii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively;
(d) so long as no Default exists or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Company”), (A) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of the Borrower under this Agreement and the other than Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that 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 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 Company’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no Default exists or would result therefrom (in the case of a merger involving a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, order to effect an Investment permitted pursuant to Section 7.02; provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if Person shall be a Guarantor is a party to such transactionRestricted Subsidiary or the Borrower, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any which together with each of its Restricted Subsidiaries toSubsidiaries, (i) engage to any substantial extent in any business other than businesses shall have complied with the requirements of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform Section 6.11 to the Fiscal Year of extent required pursuant to the Borrower Collateral and Guarantee Requirement;
(y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayedf) the Borrower and its the Restricted Subsidiaries may change their Fiscal Year to end on December 31 consummate the Acquisition, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(g) so long asas no Default exists or would result therefrom, if requested by the Administrative Agenta merger, dissolution, liquidation, consolidation or Disposition, the Borrower shall have entered into an amendment purpose of which is to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) effect a Disposition permitted pursuant to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction7.05.
Appears in 6 contracts
Sources: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary Guarantor to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower or any Subsidiary may merge into with a Loan Party in Person if the Borrower (or such Subsidiary if the Borrower is not a transaction in which party to such Loan Party merger) is the surviving entityPerson, (ii) any Guarantor Subsidiary may merge into or consolidate with another Subsidiary; provided, that if any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior party to such merger is a Subsidiary Guarantor, the Subsidiary Guarantor shall not be permitted unless also permitted by Section 8.04the surviving Person, (iii) the Borrower may sell the stock of any Restricted Subsidiary that is not and any Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets so long as the Borrower shall be in compliance, on a Guarantor pro forma basis after giving effect to such sale, with the covenants contained in Article 6, in each case recomputed as at the last day of the most recently ended fiscal quarter of the Borrower for which financial statements have been provided for under Section 5.1, and (iv) any Subsidiary may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and Borrower, is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party)Lenders, provided that (1) a Restricted and all assets of such Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior are transferred to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted a Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionGuarantor.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary Guarantor to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect Guarantors on the date hereof and businesses reasonably related thereto. The Special Purpose Subsidiaries will not engage in any business other than to hold such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change assets and conduct such business as is consistent with its fiscal year to conform to the Fiscal Year of the Borrower purpose and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.businesses reasonably related thereto
Appears in 6 contracts
Sources: Revolving Credit Agreement (NGP Capital Resources Co), Revolving Credit Agreement (NGP Capital Resources Co), Revolving Credit Agreement (NGP Capital Resources Co)
Fundamental Changes. (a) The Each Borrower will not, and will not permit any Restricted Subsidiary 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, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary of the Borrower may merge into with a Loan Party Borrower in a transaction in which such Loan Party Borrower is the surviving entity, Person (iior in the case of a transitory merger where the surviving Person assumes the Obligations in a manner reasonably acceptable to the Administrative Agent and is organized under the laws of the same jurisdiction of such Borrower);
(b) any Guarantor Restricted Subsidiary may merge into or consolidate with any Person Subsidiary in a transaction in which the surviving entity is or becomes a Guarantor; provided that Restricted Subsidiary;
(c) any Person may merge into a Borrower in an Investment permitted by Section 6.04 in which such merger or consolidation involving a Borrower is the surviving Person;
(d) any Person that is not may merge with a Restricted Subsidiary immediately prior in an Investment permitted by Section 6.04 in which the surviving entity is a Restricted Subsidiary so long as if any party to such merger shall not be permitted unless also permitted by Section 8.04is a Loan Party, the surviving entity is a Loan Party (iiior the surviving Person assumes the Obligations of such non-surviving Loan Party in a manner reasonably acceptable to the Administrative Agent);
(e) any Restricted Subsidiary that is not (other than a Guarantor Borrower) may (x) liquidate or dissolve or change in legal form if the Parent Borrower determines in good faith that such liquidation or dissolution or change in legal form is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders or Lenders; and
(yf) merge or consolidate in connection with any other Person the Disposition of a Subsidiary (other than a Loan Party), provided that (1Borrower) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also its assets permitted by Section 8.04; (iv) the Borrower or any Restricted 6.05, such Subsidiary may merge with or into any other Person in connection with a Permitted Acquisition, provided that (x) if Person. Notwithstanding the Borrower is a party to such transactionforegoing, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Parent Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Parent Borrower and its Subsidiaries on the Closing Date date of execution of this Agreement and ancillarybusinesses reasonably related, complementary or reasonably related ancillary thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date a reasonable extension or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested expansion thereof as determined by the Administrative Agent, the Parent Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactiongood faith.
Appears in 6 contracts
Sources: Credit Agreement (Coty Inc.), Credit Agreement (Coty Inc.), Master Amendment (Krispy Kreme, Inc.)
Fundamental Changes. Except in connection with an Excluded Disposition, 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 7.13, (a) The the Borrower will notmay merge or consolidate with any of its Subsidiaries provided that the Borrower shall be the continuing or surviving Person, and will not permit (b) any Restricted Subsidiary to, Loan Party other than the Borrower may merge into or consolidate with any other PersonLoan Party or the Borrower, (c) any Consolidated Party which is not a Loan Party may be merged or permit consolidated with or into any Loan Party provided that the continuing or surviving Person shall be a Loan Party, (d) any Consolidated Party which is not a Loan Party may be merged or consolidated with or into any other Person to merge into or consolidate with itConsolidated Party which is not a Loan Party, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (ie) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be Loan Party in connection with a Disposition permitted unless also permitted by under Section 8.048.05, (iiif) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests any Subsidiary of the Borrower and is not materially disadvantageous to the Lenders or (y) may merge or consolidate with any other Person (other than a Loan PartyConsolidated Party with which it could not merge under any of clauses (a) through (e), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted AcquisitionAcquisition provided that, provided that (x) if such transaction involves the Borrower is a party to such transactionBorrower, the Borrower is shall be the continuing or surviving corporation and corporation, (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (vg) any permitted sale Wholly Owned Subsidiary of the Borrower may dissolve, liquidate or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidationwind up its affairs at any time provided that such dissolution, liquidation or dissolution.
(b) The Borrower will notwinding up, nor will it permit any of its Restricted Subsidiaries toas applicable, (i) engage could not reasonably be expected to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to have a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower Material Adverse Effect and (yh) Cincinnati ▇▇▇▇ Entertainment, Inc. (f/k/a ▇▇▇▇▇▇▇▇.▇▇▇ Inc.) may merge with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned CBT or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionCBT Subsidiary.
Appears in 6 contracts
Sources: Credit Agreement (Cincinnati Bell Inc), Credit Agreement (Cincinnati Bell Inc), Credit Agreement (Cincinnati Bell Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) The any Subsidiary Guarantor may merge or consolidate with (i) the Borrower, provided that the Borrower will notshall be the continuing or surviving Person, or (ii) any one or more Subsidiary Guarantors provided that if a Wholly-Owned Subsidiary Guarantor is a party to such merger consolidation, the continuing or surviving Person shall be a Wholly-Owned Subsidiary Guarantor;
(b) any MLP Subsidiary Guarantor may merge with any one or more MLP Subsidiary Guarantors provided that if a Wholly-Owned MLP Subsidiary Guarantor is a party to such merger consolidation, the continuing or surviving Person shall be a MLP Subsidiary Guarantor;
(c) any Subsidiary Guarantor may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Wholly-Owned Subsidiary Guarantor;
(d) any MLP Subsidiary Guarantor may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any Wholly-Owned Guarantor;
(e) any Agway Subsidiary or Inactive Subsidiary may dispose of all or substantially all of its assets (including any Disposition that is in the nature of a liquidation) to any Person; and
(f) in connection with any acquisition permitted under Section 7.03, each of the Borrower, any of the Wholly-Owned Subsidiary Guarantors, and will not permit any Restricted of the Wholly-Owned MLP Subsidiary to, Guarantors may merge into or consolidate with any other Person, Person or permit any other Person to merge into or consolidate with it; provided, or liquidate or dissolvehowever, except thatthat in each case, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (i) in the case of any Restricted Subsidiary of such merger to which the Borrower may merge into is a Loan Party in a transaction in which such Loan Party party, the Borrower is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that case of any such merger or consolidation involving a Person that is not a Restricted to which any Wholly-Owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transactionparty, such a Wholly-Owned Subsidiary Guarantor is the surviving Person; entity, and (viii) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent case of any other Lender) such merger to ensure that such change in Fiscal Year does not materially adversely affect which any Wholly-Owned MLP Subsidiary Guarantor is a party, a Wholly-Owned Guarantor is the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionsurviving entity.
Appears in 6 contracts
Sources: Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, except that, (a) The Borrower will not, and will not permit any Restricted Subsidiary to, the Parent may merge into or consolidate with any of its Restricted Subsidiaries (other Personthan either Borrower) provided that the Parent is the continuing or surviving corporation, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at (b) the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (i) any Restricted Subsidiary of the Borrower Company may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which of its Restricted Subsidiaries (other than the surviving entity is or becomes a Guarantor; Designated Borrowers) provided that any such merger the Company is the continuing or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04surviving corporation, (iiic) the Merger and the Post-Closing Reorganization may each be consummated, (d) any Designated Borrower may merge or consolidate with any of its Restricted Subsidiary that is not a Guarantor may Subsidiaries (xother than another Designated Borrower) liquidate or dissolve if the Borrower determines in good faith provided that such liquidation Designated Borrower is the continuing or dissolution is in the best interests surviving corporation, (e) any Domestic Subsidiary of the Borrower and is not materially disadvantageous to the Lenders or (y) Company may merge or consolidate with any other Domestic Subsidiary of the Company provided that if a Domestic Guarantor is a party to such transaction, the continuing or surviving Person is (or shall, simultaneously upon consummation of such transaction, become) a Domestic Guarantor, (f) any Foreign Subsidiary (other than a Loan Party), Designated Borrower) of the Company may merge or consolidate with any other Foreign Subsidiary (other than a Designated Borrower) of the Company provided that if a Foreign Guarantor is a party to such transaction, the continuing or surviving Person is (1or shall, simultaneously upon consummation of such transaction, become) a Restricted Subsidiary is the surviving Person and Foreign Guarantor, (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (ivg) the Borrower Parent or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (xi) if the Parent is a party to such transaction, the Parent is the continuing or surviving corporation, (ii) if the Company is a party to such transaction, the Company is the continuing or surviving corporation, (iii) if a Designated Borrower is a party to such transaction, the such Designated Borrower is the continuing or surviving corporation and (yiv) if a Guarantor any other Loan Party is a party to such transaction, the continuing or surviving Person is (or, if not already a Loan Party, shall, substantially concurrently with the consummation of such Guarantor is the surviving Person; and transaction, become) a Loan Party, (vh) any permitted sale Restricted Subsidiary (other than a Borrower) may dissolve, liquidate or disposition under Section 8.05 may be effectuated pursuant to a mergerwind up its affairs at any time, consolidationprovided that such dissolution, liquidation or dissolution.
(b) The Borrower will notwinding up, nor will it permit any of its Restricted Subsidiaries toas applicable, could not reasonably be expected to have a Material Adverse Effect, (i) engage to any substantial extent in any business Restricted Subsidiary (other than businesses a Borrower) may merge or consolidate with or into another Person, or dissolve or liquidate, in each case, solely for the purpose of the type conducted by the Borrower effecting a Disposition expressly permitted pursuant to Section 8.05 and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (xj) any Restricted Subsidiary may change its fiscal year merge or consolidate with any other Person in order to conform effectuate an Investment expressly permitted pursuant to Section 8.02 provided that (i) if such Restricted Subsidiary is (x) a Domestic Loan Party, the Fiscal Year of continuing or surviving Person is or shall become a Domestic Loan Party (and if such Subsidiary is the Borrower and Company, the Company shall be the continuing or surviving Person) or (y) a Foreign Loan Party, the continuing or surviving Person is or shall become a Loan Party (and if such Subsidiary is a Designated Borrower, such Designated Borrower shall be the continuing or surviving Person), and (ii) if the continuing or surviving Person shall be a Restricted Subsidiary (other than an Immaterial Subsidiary), such Person, together with the consent each of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as(if any), if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement complied with Section 7.12 within the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactiontimeframes specified therein.
Appears in 5 contracts
Sources: Credit Agreement (SS&C Technologies Holdings Inc), Incremental Joinder (SS&C Technologies Holdings Inc), Credit Agreement (SS&C Technologies Holdings Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) The Borrower will not, and will not permit any Restricted Subsidiary tomay merge, merge into amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving Person or (ii) one or more other Restricted Subsidiaries; provided that when any other Person that is a Loan Party is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: ;
(i) any Restricted Subsidiary of the Borrower may merge into that is not a Loan Party in may merge, amalgamate or consolidate with or into any other Subsidiary that is not a transaction in which such Loan Party is the surviving entityParty, (ii) any Guarantor Subsidiary may merge into liquidate or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, dissolve and (iii) any Restricted Subsidiary that is not a Guarantor may change its legal form if, with respect to clauses (xii) liquidate or dissolve if and (iii), the Borrower determines in good faith that such liquidation or dissolution action is in the best interests interest of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor (other than Holdings) or the Borrower or (yii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively; and
(d) so long as no Default has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Company”), (A) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia, (B) the Successor Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that 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 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 Company’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement;
(e) so long as no 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 or consolidate with any other Person (other than a Loan Party), in order to effect an Investment permitted pursuant to Section 7.02; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if Person shall be a Guarantor is a party Restricted Subsidiary of the Borrower, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.11 to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated extent required pursuant to the Collateral and Guarantee Requirement;
(f) Holdings, the Borrower and the Restricted Subsidiaries may consummate the Acquisition, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(g) so long as no Default has occurred and is continuing or would result therefrom, a merger, consolidationdissolution, liquidation liquidation, consolidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative AgentDisposition, the Borrower shall have entered into an amendment purpose of which is to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) effect a Disposition permitted pursuant to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction7.05.
Appears in 5 contracts
Sources: Term Loan Credit Agreement (Prestige Consumer Healthcare Inc.), Abl Credit Agreement (Prestige Brands Holdings, Inc.), Term Loan Credit Agreement (Prestige Brands Holdings, Inc.)
Fundamental Changes. (a) The No Borrower will notwill, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the stock of any of the Subsidiaries (in each case, whether now owned or hereafter acquired), except as permitted pursuant to Section 6.13, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: ; provided that (i) any Restricted Subsidiary Credit Party (other than any Borrower) may dissolve as long as assets thereof are transferred to or become the Property of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entityanother Credit Party, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate dissolve as long as the assets thereof are transferred to or dissolve if become the Property of a Guarantor or a Borrower determines in good faith or another Subsidiary that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or a Guarantor, (yiii) any Borrower may merge or consolidate with may be consolidated into any other Person Guarantor if such Borrower is the surviving entity, (iv) any Credit Party (other than a Loan Party)Borrower) may merge or may be consolidated into any other Guarantor, provided (v) any Subsidiary that is not a Guarantor may merge or may be consolidated into any Credit Party or another Subsidiary that is not a Guarantor, and (1vi) any Credit Party may merge or may be consolidated into any Person, pursuant to a Restricted Subsidiary transaction permitted by Section 6.04, so long as the Credit Party is the surviving Person or transferee (and (2) any if such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower Credit Party is a party to Borrower, such transaction, the Borrower is the continuing surviving Person or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutiontransferee).
(b) The No Borrower will, and will not, nor will it not permit any of its Restricted Subsidiaries Subsidiary to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower Borrowers and its the Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent execution of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and businesses reasonably related thereto. From and after the date hereof, no Borrower will, and will not permit any Subsidiary to, acquire or make any other expenditures (whether such expenditure is capital, operating or otherwise) in or related to otherwise appropriately update any Oil and Gas Properties not located within the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation geographical boundaries of the TransactionUnited States or form or acquire any Subsidiary organized under any jurisdiction outside of the United States.
Appears in 5 contracts
Sources: Credit Agreement (Unit Corp), Credit Agreement (Unit Corp), Credit Agreement (Unit Corp)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its Subsidiaries when taken as a whole, or all or substantially all of the stock of its Subsidiaries when taken as a whole (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of Person may merge into, or consolidate with, the Borrower may merge into a Loan Party in a transaction in which such Loan Party the Borrower is the surviving entitycorporation, (ii) any Guarantor Person not a Credit Party may merge into into, or consolidate with with, any Person Subsidiary in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04Subsidiary, (iii) any Restricted Subsidiary that is not a Guarantor Credit Party may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary, (xiv) any Subsidiary not a Credit Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or Lenders, (yv) any Subsidiary which is a Credit Party may merge into (or consolidate with with) or liquidate or dissolve into, any other Person Subsidiary which is a Credit Party, and (vi) any Subsidiary which is a Credit Party may sell, transfer, lease or otherwise dispose of its assets to Borrower or to any other than Subsidiary which is a Loan Credit Party), ; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.03.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent execution of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionbusinesses reasonably related thereto.
Appears in 5 contracts
Sources: Credit Agreement (Weingarten Realty Investors /Tx/), Credit Agreement (Weingarten Realty Investors /Tx/), Credit Agreement (Weingarten Realty Investors /Tx/)
Fundamental Changes. (a) The Neither Holdings nor the Borrower will, nor will not, and will not they 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, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower Person may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entitycorporation, (ii) any Guarantor Person may merge into or consolidate with any Person Restricted Subsidiary in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, and (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), Lenders; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a wholly owned Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04.
(b) The Borrower will not, nor and will it not permit any of its other Restricted Subsidiaries Subsidiary to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date date of execution of this Agreement and ancillary, complementary or businesses reasonably related thereto thereto.
(c) Holdings will not engage in any business or activity other than (i) the ownership of all of the outstanding Equity Interests in the Borrower, (ii) change the issuance of the High Yield Notes, (iii) issuances of Qualifying Holdings Debt, (iv) issuances of its Fiscal Year from Equity Interests, (v) the basis holding of 100% of the Equity Interests of any Unrestricted Subsidiary which is engaged exclusively in effect the buying, selling and trading of telecommunications services as a commodity on a developing or an established market (a "Trading Subsidiary") and (vi) the Closing Date or holding of Qualifying Borrower Indebtedness permitted under Section 6.01(q) and, with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year each of the foregoing, activities incidental thereto. Holdings will not own or acquire any assets (other than Qualifying Equity Interests in the Borrower, Qualifying Borrower Indebtedness, Equity Interests in any Trading Subsidiary, cash and Cash Equivalent Investments) or incur any liabilities (y) with other than liabilities under the consent Loan Documents, liabilities in respect of the Administrative Agent (not to be unreasonably withheldHigh Yield Notes, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long asliabilities in respect of Qualified Holdings Debt permitted hereunder, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change liabilities in Fiscal Year does not materially adversely affect the rights respect of the Lenders or the Borrower under this Agreement Structured Note Financing, liabilities imposed by law, including tax liabilities, and other liabilities incidental to otherwise appropriately update the terms hereof in light of such change in Fiscal Year its existence and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionpermitted business and activities).
Appears in 5 contracts
Sources: Aircraft Dry Lease (Williams Companies Inc), Aircraft Dry Lease (Williams Companies Inc), Master Lease Agreement (Williams Companies Inc)
Fundamental Changes. (a) The Borrower will notEnter into any merger, and will not permit any Restricted Subsidiary to, merge into consolidation or consolidate with any other Personamalgamation, or permit divide, liquidate, wind up or dissolve itself (or suffer any other Person to merge into division, liquidation or consolidate with itdissolution), or liquidate Dispose of all or dissolvesubstantially all of its property or business, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary of the Parent Borrower may merge be merged or consolidated with or into a Loan Party in a transaction in which the Parent Borrower or any Subsidiary Borrower (provided that the Parent Borrower or such Loan Party is Subsidiary Borrower, as applicable, shall be the continuing or surviving entity) or with or into any other Restricted Subsidiary (provided, that when any Subsidiary Guarantor is merging with or into another Restricted Subsidiary (other than a Subsidiary Borrower), such Subsidiary Guarantor shall be the continuing or surviving entity or the continuing or surviving entity shall, substantially simultaneously with such merger or consolidation, become a Subsidiary Guarantor; provided further that when any Subsidiary Borrower is merging with or into another Restricted Subsidiary, the continuing or surviving entity shall be such Subsidiary Borrower or the continuing or surviving entity shall, simultaneously with such merger or consolidation, become a Subsidiary Borrower in accordance with Section 2.27 and assume the obligations of such Subsidiary Borrower under this Agreement and the other Loan Documents);
(b) any Restricted Subsidiary may merge, consolidate or amalgamate with any other Person (other than the Parent Borrower) in order to effect an Investment permitted pursuant to Section 7.7; provided that (x) if such Restricted Subsidiary is a Subsidiary Guarantor the continuing or surviving Person shall be a Subsidiary Guarantor and (y) if such Restricted Subsidiary is a Subsidiary Borrower, such Subsidiary Borrower shall be the continuing or surviving Person or the continuing or surviving Person shall, simultaneously with such merger, consolidation or amalgamation, become a Subsidiary Borrower in accordance with Section 2.27 and assume the obligations of such Subsidiary Borrower under this Agreement and the other Loan Documents;
(c) any Restricted Subsidiary of the Parent Borrower may Dispose of any or all of its assets (i) to any Borrower or any Subsidiary Guarantor (upon voluntary liquidation or otherwise) or (ii) any Guarantor may merge into or consolidate with any Person in pursuant to a transaction in which the surviving entity is or becomes a GuarantorDisposition permitted by Section 7.5; provided that no Subsidiary Borrower shall be permitted to Dispose of all or substantially all of its assets pursuant to this Section 7.4(c) to any Person, other than to a Borrower who has assumed the obligations of such merger Subsidiary Borrower under this Agreement and the other Loan Documents, if such Subsidiary Borrower has any outstanding Loans or consolidation involving a Person Reimbursement Obligations; and
(d) any Restricted Subsidiary of the Parent Borrower that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Guarantor or a Subsidiary that is not a Guarantor Borrower may (xi) dispose of any or all or substantially all of its assets to any Group Member (upon voluntary liquidation or otherwise) or (ii) liquidate or dissolve if the Parent Borrower determines in good faith that such liquidation or dissolution is in the best interests interest of the Parent Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionLenders.
Appears in 5 contracts
Sources: Credit Agreement (Ultra Clean Holdings, Inc.), Credit Agreement (Ultra Clean Holdings, Inc.), Credit Agreement (Ultra Clean Holdings, Inc.)
Fundamental Changes. (a) The Borrower will shall not, and will not nor shall it permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or wind up, liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower Person may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entitycorporation, (ii) any Guarantor Person (other than the Borrower) may merge into or consolidate with any Person Restricted Subsidiary in a transaction in which the surviving entity is is, or becomes a Guarantor; provided that any upon the effectiveness of such merger or consolidation involving a Person that is not will become, a Restricted Subsidiary immediately prior and (if any party to such merger shall not be permitted unless also permitted by Section 8.04is a Subsidiary Loan Party) is, or upon the effectiveness of such merger will become, a Subsidiary Loan Party, (iii) any Asset Sale permitted under Section 6.04 may be structured as a merger or consolidation and (iv) any Restricted Subsidiary that is not a Guarantor may (x) wind up, liquidate or dissolve if (A) the Borrower determines in good faith that such winding up, liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (B) with respect to any winding up, liquidation or (y) merge or consolidate with any other Person (other than dissolution of a Subsidiary Loan Party), all distributions in respect of Equity Interest of such Subsidiary Loan Party resulting from such winding up, liquidation or dissolution shall be made to the Borrower or other Subsidiary Loan Parties; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Wholly Owned Restricted Subsidiary of the Borrower immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted AcquisitionSections 6.02, provided that (x) if the Borrower is a party to such transaction6.04, the Borrower is the continuing or surviving corporation 6.08 and (y) if a Guarantor is a party to such transaction6.14, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionas applicable.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 4 contracts
Sources: Credit Agreement (Healthsouth Corp), Credit Agreement (Healthsouth Corp), Credit Agreement (Healthsouth Corp)
Fundamental Changes. (a) The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary of it 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, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: continuing or would arise therefrom, (i) any Restricted Subsidiary of the Borrower may liquidate, dissolve, consolidate, or merge into a Loan Party in a transaction in which such a Loan Party is the surviving entitycorporation, (ii) any Guarantor Subsidiary that is not a Loan Party may liquidate, dissolve, consolidate, or merge into any Subsidiary that is not a Loan Party, (iii) any Loan Party may merge with or into any other Loan Party, and (iv) Permitted Acquisitions and transactions permitted pursuant to SECTION 6.05 may be consummated in the form of a merger or consolidate with any Person consolidation, as long as, in the event of a transaction in which Permitted Acquisition, a Loan Party is the surviving entity is or becomes a Guarantor; Person, provided that any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04SECTION 6.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), further provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger the Borrower shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) and, further provided, that any such merger or consolidation involving Holdings shall not be permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionunless Holdings is the surviving Person.
(b) The Borrower will notNo Loan Party will, nor will it permit any Subsidiary of its Restricted Subsidiaries it to, (i) engage engage, to any substantial extent material extent, in any business other than businesses of the type conducted by the Borrower and its Subsidiaries such Loan Party or such Subsidiary, as applicable, on the Closing Date date of execution of this Agreement and ancillarybusinesses reasonably related thereto and those supportive, complementary or reasonably related thereto ancillary thereto.
(c) Holdings shall not, nor shall it permit any of its Subsidiaries directly, or indirectly owning Capital Stock of the Borrower to, (iii) change its Fiscal Year from engage or commit to engage in any business or activity other than (A) the basis in effect on ownership of all the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year outstanding shares of Capital Stock of the Borrower and activities incidental thereto and (yB) with the consent ownership of all the outstanding shares of Capital Stock of other entities created or acquired in a transaction otherwise permitted hereunder and activities incidental thereto, (ii) own or acquire any assets (other than all of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) outstanding shares of Capital Stock of the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative AgentBorrower, the Borrower shall have entered into an amendment to this Agreement with cash proceeds of any Restricted Payments permitted by SECTION 6.06 or all of the Administrative Agent (which amendment shall not require the consent outstanding shares of Capital Stock of any other Lenderentity created or acquired in a transaction otherwise permitted hereunder), or (iii) to ensure that such change in Fiscal Year does not materially adversely affect the rights incur any Indebtedness or other liabilities or financial obligations (other than obligations constituting Permitted Indebtedness under clauses (a), (c), (i), (k), (m), (o), (t) or (u) of the Lenders or the Borrower definition thereof or, with respect to such types of Permitted Indebtedness, constituting Permitted Indebtedness under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation clause (w) of the Transactiondefinition thereof to the extent permitted thereunder, nonconsensual obligations imposed by operation of law and obligations reasonably incurred in connection with its maintenance of its existence).
Appears in 4 contracts
Sources: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with or into any other Person, Person or permit any other Person to merge into or consolidate with or into it, or liquidate or dissolve, except and the Borrower will not Dispose of (whether in one transaction or a series of transactions and whether directly or indirectly) all or substantially all of the assets of the Borrower and its Restricted Subsidiaries on a consolidated basis; provided that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary of may merge or consolidate with or into the Borrower may merge into a Loan Party in a transaction in which such Loan Party so long as the Borrower is the surviving entity, or continuing Person;
(iib) any Guarantor Restricted Subsidiary may merge into or consolidate with or into any Person in a transaction in which the surviving entity is or becomes a Guarantorother Restricted Subsidiary; provided that any if such merger or consolidation involving involves a Person that is not Subsidiary Guarantor, a Restricted Subsidiary immediately prior to such merger Guarantor shall not be permitted unless also permitted by Section 8.04, the surviving or continuing Person;
(iiic) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Restricted Subsidiary; provided that if such Disposition is not by a Subsidiary Guarantor, a Loan Party shall be the acquirer of such assets;
(d) any Disposition permitted by Section 6.08 and any merger or consolidation the purpose of which is to effect a Disposition permitted by Section 6.08 may be consummated;
(e) any Person (other than the Borrower or a Restricted Subsidiary) may merge with or into the Borrower or any Restricted Subsidiary in connection with any Permitted Acquisition; provided that (A) if such merger or consolidation involves the Borrower, the Borrower shall be the surviving or continuing Person and (B) if such merger or consolidation involves a Subsidiary Guarantor, a Subsidiary Guarantor shall be the surviving or continuing Person; and
(f) any Restricted Subsidiary may (x) liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests interest of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders or and (yii) merge or consolidate with any other Person (other than if such Restricted Subsidiary is a Loan Party), provided that (1) a all of the assets of such Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior shall be transferred to another Loan Party after giving effect to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 4 contracts
Sources: Credit Agreement, Credit Agreement (Southwestern Energy Co), Term Loan Credit Agreement (Southwestern Energy Co)
Fundamental Changes. (a) The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower Person may merge into a Loan Party or consolidate with Holdings or the Borrower in a transaction in which such Loan Party Holdings or the Borrower is the surviving entity, (ii) any Guarantor Person (other than Holdings or the Borrower) may merge into or consolidate with any Subsidiary in a transaction in which the surviving entity is a Subsidiary and, if any party to such merger or consolidation is a Subsidiary Loan Party, is a Subsidiary Loan Party, (iii) any Subsidiary (other than the Borrower) may merge into or consolidate with any Person in a transaction permitted under Section 6.05 in which which, after giving effect to such transaction, the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, Subsidiary; (iiiiv) any Restricted Subsidiary that is not (other than the Borrower) may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 6.04, provided, that, the continuing or surviving Person shall be a Guarantor Subsidiary Loan Party; (v) any Subsidiary (other than the Borrower) may (x) liquidate or dissolve if the Borrower Holdings determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Holdings and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party)Lenders; provided, provided that (1) a Restricted Subsidiary is the surviving Person and (2) that, any such merger or consolidation otherwise permitted pursuant to the foregoing provisions involving a Person that is not a Restricted wholly-owned Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 8.04; (iv) the Borrower 6.04 or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation 6.05 and (yvi) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; Holdings and (v) its Subsidiaries may consummate any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionPermitted Reorganization.
(b) The Borrower will not, nor and Holdings and the Borrower will it not permit any of its Restricted Subsidiaries Subsidiary to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower Holdings and its Subsidiaries on the Closing Date and businesses reasonably related, ancillary, complementary or reasonably related incidental thereto (including any reasonable extension, development or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionexpansion thereof).
Appears in 4 contracts
Sources: Credit Agreement (Trinet Group, Inc.), Credit Agreement (Trinet Group, Inc.), Credit Agreement (Trinet Group, Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any 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 dissolvein a series of transactions) all or substantially all of the assets of Holdings or any Restricted Subsidiary on a consolidated basis, taken as a whole, to any other Person, except that, so long as no Default exists or would result therefrom:
(a) Holdings or any Restricted Subsidiary may merge with or acquire another Person engaged in a similar or adjacent line of business as that Holdings and the Restricted Subsidiaries have conducted during the current and most recently concluded calendar year, through a stock, asset or any other similar transaction (or any business reasonably ancillary or complementary thereto, or which is a reasonable extension, development or expansion thereof), if
(i) Holdings 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 at (i) such Loan Party or such Wholly-Owned Restricted Subsidiary, as the time thereof 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 thereto to such merger, no Default shall have occurred and or be continuing: ;
(ic) Holdings or any of its Subsidiaries may enter a Permitted Intercompany Transaction;
(d) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 8.05 (other than a Loan PartyInvestments permitted pursuant to clause (f) of the definition of “Permitted Investments”), ; provided that (1) the continuing or surviving Person shall be a Restricted Subsidiary is the surviving Person and (2) any and, if such merger or consolidation involving involves a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted AcquisitionBorrower, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation Person shall be such Borrower) and shall have complied with the applicable provisions of Sections 7.12 and 7.14 and the Collateral Documents;
(e) any Immaterial Subsidiary may be liquidated or dissolved; and
(f) Holdings may (x) merge or consolidate with an entity organized under the laws of the State of Delaware, (y) if reorganize in the State of Delaware or (z) “continue” as a Guarantor is a party Delaware corporation pursuant to such transactionSection 388 of the General Corporation Law of the State of Delaware (clauses (x), such Guarantor is the surviving Person; (y) and (vz) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a mergercollectively, consolidationthe “J2 Domestication Merger”), liquidation or dissolution.
(b) The Borrower will notin each case for the purpose of changing the jurisdiction of organization of Holdings; provided that, nor will it permit any in the event of its Restricted Subsidiaries tothe J2 Domestication Merger, (i) engage to any substantial extent in any business other than businesses of Holdings shall be the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary continuing or reasonably related thereto surviving Person or (ii) change its Fiscal Year from if the basis in effect on Person formed by or surviving the Closing Date J2 Domestication Merger is not Holdings (any such Person, the “Successor Company”), (A) the Successor Company shall be an entity organized or with respect existing under the laws of the State of Delaware and (B) the Successor Company 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 Restricted Subsidiary that was acquired supplement hereto or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year thereto reasonably satisfactory to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheldand the Collateral Agent; provided, conditioned or delayed) further that, in the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long asevent of the J2 Domestication Merger, if requested by at the request of the Administrative Agent, Holdings or the Borrower Successor Company, as applicable, shall have entered enter into an amendment to this Agreement with such documentation as the Administrative Agent (which amendment shall not require reasonably determines is necessary or desirable to grant and perfect the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect Collateral Agent’s Lien on the rights Equity Interests of the Lenders Initial Borrower in accordance with the requirements of Section 7.12 (as if Holdings or the Borrower under this Agreement such Successor Company were a newly formed or acquired US Subsidiary) and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction7.14 hereof.
Appears in 4 contracts
Sources: Credit Agreement (APi Group Corp), Credit Agreement (APi Group Corp), Credit Agreement (APi Group Corp)
Fundamental Changes. (a) The Borrower will notMerge, and will not permit any 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 dissolvePerson, except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing: exists or would result therefrom:
(a) any Restricted Subsidiary may merge with (i) the Borrower, provided that the Borrower shall be the continuing or surviving Person, or (ii) any one or more other Restricted Subsidiaries; provided that (x) when any Loan Party (other than Holdings) is merging with another Subsidiary that is not a Qualified Subsidiary, a Loan Party shall be the continuing or surviving Person, (y) when any Subsidiary Guarantor is merging with a Qualified Subsidiary, such Subsidiary Guarantor shall be the continuing or surviving Person, unless such Subsidiary Guarantor holds no assets other than de minimis assets or Equity Interests of a Qualified Subsidiary, in which event either such Subsidiary Guarantor or Qualified Subsidiary shall be the continuing or surviving Person and (z) when any Qualified Subsidiary is merging with another Subsidiary that is not a Loan Party, a Qualified Subsidiary shall be the continuing or surviving Person;
(b) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower, to another Restricted Subsidiary or to a Qualified Subsidiary; provided that if the transferor in such a transaction is a Subsidiary Guarantor, then the transferee must be the Borrower or a Subsidiary Guarantor; and
(c) in connection with any acquisition permitted under Section 7.03, any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than the Borrower or a Loan Party), Restricted Subsidiary) or permit any other Person (other than the Borrower or a Restricted Subsidiary) to merge into or consolidate with it; provided that in the case of any such merger to which any Loan Party (1other than the Borrower) or Qualified Subsidiary is a Restricted party, such Loan Party or Qualified Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 4 contracts
Sources: First Lien Credit Agreement (American Renal Associates Holdings, Inc.), First Lien Credit Agreement (American Renal Associates Holdings, Inc.), First Lien Credit Agreement (American Renal Associates Holdings, Inc.)
Fundamental Changes. (a) The No Borrower will notshall, and will not nor shall it permit any Restricted Subsidiary of its Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: (i) continuing any Restricted Subsidiary of the a Borrower (a) may merge into a Loan Party such Borrower in a transaction in which such Loan Party Borrower is the surviving entitycorporation, (iib) any Guarantor may merge into or consolidate with any Person Credit Party in a transaction in which the surviving entity is or a Credit Party, (c) that is not a Credit Party may merge into any Subsidiary that is not a Credit Party, (d) may merge into any other Person that becomes a GuarantorCredit Party in connection with a Permitted Acquisition, (e) may liquidate or dissolve if Company determines in good faith that such liquidation or dissolution is in the best interests of Company and is not materially disadvantageous to the Lenders; provided that any such merger or consolidation involving a Person that is not a Restricted Wholly-Owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.048.7, and (iiif) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines merge with another Person in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) connection with an Asset Disposition permitted under Section 8.4. No Permitted MTBE Joint Venture may merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary of their Subsidiaries except in a transaction that is a Permitted Acquisition. Notwithstanding the foregoing, at any time that no Unmatured Event of Default or Event of Default exists, upon not less than thirty (30) days’ prior written notice to Administrative Agent and Collateral Agent, Company may merge with any other Person and into a newly formed Wholly-Owned Subsidiary of Holdings GP (“NewCo”) that is organized in connection with the State of Delaware or the State of Texas solely for purposes of reforming Company as a Permitted Acquisitionlimited liability company or corporation; provided, provided that (x) if on or before the Borrower is a party to date of such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidationCompany delivers the following documents to Administrative Agent, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any each of its Restricted Subsidiaries to, which shall be in form and substance acceptable to Administrative Agent and Collateral Agent: (i) engage an assumption agreement pursuant to any substantial extent in any business other than businesses which NewCo assumes the obligations of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower Company under this Agreement and the other Loan Documents to otherwise appropriately update which Company is party, (ii) such financing statements under the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation provisions of the TransactionUCC, applicable foreign, domestic or local laws, rules or regulations in each of the offices where such filing is necessary or appropriate to continue the security interest of the Collateral Agent for the benefit of the Secured Creditors a Lien (subject only to Permitted Liens and perfected to the extent required by the Security Documents) in the Collateral owned by Company and NewCo, (iii) such modifications to any Mortgages and Mortgage Policies as may be required by Collateral Agent with respect to the Mortgaged Properties owned by Company, (iv) an opinion of counsel to Company with respect to such matters as Administrative Agent or Collateral Agent may request, (v) the documents that would have been required to have been delivered by NewCo on the date hereof had NewCo been a borrower hereunder on such date under Sections 5.1(b), 5.1(c)(i) - (iii), and 5.1(c)(v) and (vi) such other documentation as Administrative Agent or Collateral Agent may request.
Appears in 4 contracts
Sources: Revolving Credit Agreement (Texas Petrochemicals Inc.), Revolving Credit Agreement (Texas Petrochemicals Inc.), Revolving Credit Agreement (Texas Petrochemicals Inc.)
Fundamental Changes. Enter into any merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), except:
(a) The for the transactions otherwise permitted pursuant to Section 6.05(b) or (f) or pursuant to Section 6.06;
(b) any Subsidiary may be merged with and into Borrower will not, and will not permit or any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: Subsidiary; provided that (i) in the case of any Restricted Subsidiary of the merger or consolidation involving Borrower, Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entityPerson, (ii) in the case of any merger not involving Borrower but involving a Subsidiary Guarantor, a Subsidiary Guarantor is the surviving Person, (iii) in the case of a merger of two Subsidiaries, if either Subsidiary was a Wholly Owned Subsidiary, the surviving Person remains a Wholly Owned Subsidiary of Borrower, (iv) so long as the Additional Borrower has any Loans outstanding, it may only merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; Borrower (provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower compliance with clause (i) above) and is not materially disadvantageous (v) subject to the Lenders or requirements of (yi) above in the case of Borrower, any Subsidiary may merge or consolidate with any other Person in order to effect a Permitted Acquisition;
(other than c) any Subsidiary of Borrower may be liquidated or dissolved; provided that the assets of such Subsidiary that are distributed as part of such liquidation or dissolution are distributed to a Loan Party), provided that ; and
(1) a Restricted Subsidiary is the surviving Person and (2d) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also Asset Sale permitted by Section 8.046.05(f) may be effected through the merger of a Subsidiary of Borrower with a third party; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person provided that in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transactionforegoing, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary appropriate Loan Parties shall take all actions necessary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative AgentAgent or the Collateral Agent to maintain the perfection of (or to perfect, as the Borrower shall have entered into an amendment case may be), protect and preserve the Liens on the Collateral granted to this Agreement the Collateral Agent pursuant to the Security Documents and otherwise comply with the Administrative Agent (which amendment shall not require provisions of Section 5.10 to the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionextent applicable.
Appears in 4 contracts
Sources: First Lien Credit Agreement (Emdeon Inc.), Second Lien Credit Agreement (Emdeon Inc.), First Lien Credit Agreement (Emdeon Inc.)
Fundamental Changes. (a) The Borrower Company will not, and nor will not it permit any Restricted Subsidiary to, merge into into, amalgamate or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of the Company and the Restricted Subsidiaries, taken as a whole, to or in favor of any Person (other than as part of the Transactions), except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary of the Borrower Company (other than any Intermediate Holdco) may merge into a Loan Party in a transaction in which such Loan Party is merge, amalgamate, consolidate or amalgamate with (A) the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a GuarantorCompany; provided that the Company shall be the continuing or surviving Person or (B) one or more other Restricted Subsidiaries of the Company; provided that, except with the consent of the Required Holders (such consent not to be unreasonably withheld, conditioned or delayed; provided, that it is acknowledged and agreed that it shall not be unreasonable to withhold consent to any such merger transaction that will have a material adverse impact on the Note Guarantees or the Collateral), when any Domestic Note Guarantor or Canadian Note Guarantor is merging, consolidating or amalgamating with any other Restricted Subsidiary, such merger, consolidation involving or amalgamation complies with Article 11 and Article 13 of this Indenture and either (1) the continuing or surviving Person shall be a Domestic Note Guarantor or Canadian Note Guarantor or (2) if the continuing or surviving Person is not a Domestic Note Guarantor or Canadian Note Guarantor, the acquisition of such Note Guarantor by such surviving Restricted Subsidiary is permitted under Section 4.13; provided, further that, except with the consent of the Required Holders (such consent not to be unreasonably withheld, conditioned or delayed; provided, that it is acknowledged and agreed that it shall not be unreasonable to withhold consent to any such transaction that will have a material adverse impact on the Note Guarantees or the Collateral), when any Note Guarantor that is not a Domestic Note Guarantor or Canadian Note Guarantor is merging, consolidating or amalgamating with any other Restricted Subsidiary immediately prior to either (1) the continuing or surviving Person shall be a Domestic Note Guarantor, a Canadian Note Guarantor or a Note Guarantor organized in the same Specified Jurisdiction as such merger shall Note Guarantor or (2) if the continuing or surviving Person is not be a Domestic Note Guarantor, a Canadian Note Guarantor or a Note Guarantor organized in the same Specified Jurisdiction as such Note Guarantor, the acquisition of such Note Guarantor by such surviving Restricted Subsidiary is permitted unless also permitted by under Section 8.04, 4.13;
(iiib) any Restricted Subsidiary that is not a Guarantor (other than any Intermediate Holdco) may (x) liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower Company and the Restricted Subsidiaries, taken as a whole, and is not materially disadvantageous to the Lenders Holders of the Notes;
(c) any Restricted Subsidiary (other than any Intermediate Holdco) may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other Restricted Subsidiary; provided that if the transferor in such a transaction is a Note Guarantor, then such Disposition must comply with Article 11 and Article 13 of this Indenture and either (A) the transferee must be a Note Party (other than an Intermediate Holdco), (B) to the extent constituting an Investment, such Investment must be an Investment in a Restricted Subsidiary that is not a Note Guarantor permitted by Section 4.13 and Section 4.28 or (C) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Note Guarantor, such Disposition is for Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is an Investment in a Restricted Subsidiary that is not a Note Guarantor permitted by Section 4.13 and Section 4.28; provided that the aggregate amount of Dispositions made in reliance on subclauses (B) and (C) of this clause (c), together with (x) all other Investments made in and Dispositions made to Restricted Subsidiaries that are not Note Guarantors by any Note Party after the Issue Date and (y) merge all Investments and Dispositions made in reliance on Section 4.28(ii), shall not exceed, at the time of the making thereof, and after giving pro forma effect thereto, $7,500,000;
(d) the Company may merge, amalgamate or consolidate with any other Person (other than a Loan Partyany Intermediate Holdco), ; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger Company shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation Person and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation amalgamation or dissolution.consolidation complies with Article 11;
(be) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, [reserved];
(i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (xf) any Restricted Subsidiary may change its fiscal year merge, consolidate or amalgamate with any other Person (other than any Intermediate Holdco) in order to conform effect an Investment permitted pursuant to Section 4.13; provided that the continuing or surviving Person shall be a Restricted Subsidiary and such merger, amalgamation or consolidation complies with Article 11 and Article 13; provided, further, that no such merger, consolidation or amalgamation involving any Note Guarantor that is not a Domestic Note Guarantor or Canadian Note Guarantor shall be permitted pursuant to the Fiscal Year of clause (f) unless the Borrower and same has been consented to by the Required Holders (y) with the such consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed; provided, that it is acknowledged and agreed that it shall not be unreasonable to withhold consent to any such transaction that will have a material adverse impact on the Note Guarantees or the Collateral);
(g) [reserved];
(h) [reserved]; and
(i) any Restricted Subsidiary (other than any Intermediate Holdco) may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 4.14; provided that no such merger, consolidation or amalgamation involving any Note Guarantor that is not a Domestic Note Guarantor or Canadian Note Guarantor shall be permitted pursuant to the Borrower and its Restricted Subsidiaries may change their Fiscal Year clause (i) unless the same has been consented to end on December 31 so long as, if requested by the Administrative AgentRequired Holders (such consent not to be unreasonably withheld, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment conditioned or delayed; provided, that it is acknowledged and agreed that it shall not require be unreasonable to withhold consent to any such transaction that will have a material adverse impact on the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders Note Guarantees or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionCollateral).
Appears in 4 contracts
Sources: Supplemental Indenture (Invacare Corp), Supplemental Indenture (Invacare Corp), Indenture (Invacare Corp)
Fundamental Changes. (a) The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to, merge merge, dissolve, 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 dissolvePerson, except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing: exists or would result therefrom:
(ia) any Restricted Subsidiary may merge or consolidate with or into (i) the Borrower, provided that the Borrower shall be the continuing or surviving Person and such merger or consolidation does not result in the Borrower ceasing to be a corporation or limited liability company organized under the Laws of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is United States, any state thereof or the surviving entityDistrict of Columbia, or (ii) any one or more other Restricted Subsidiaries, provided that when any Subsidiary Guarantor may merge into is merging, consolidating or consolidate amalgamating with any other Restricted Subsidiary either the continuing or surviving Person in shall be a transaction in which Subsidiary Guarantor;
(b) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the surviving entity is Borrower or becomes a Guarantorto another Restricted Subsidiary; provided that any if the transferor in such merger a transaction is a Subsidiary Guarantor, then either (A) the transferee must be a Loan Party, or consolidation involving (B) to the extent constituting an Investment, such Investment must be a Person that is not Permitted Investment in a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate Loan Party or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests Indebtedness of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also Loan Party, in each case permitted by Section 8.04; 6.08 and Section 6.03;
(ivc) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a transaction that would be a Permitted Acquisition, Investment; provided that (xi) if the Borrower is a party to such transactionmerger, the Borrower is it shall be the continuing or surviving Person and such merger or consolidation does not result in the Borrower ceasing to be a corporation and or limited liability company organized under the Laws of the United States, any state thereof or the District of Columbia, or (yii) if a Guarantor any Restricted Subsidiary is a party to such transactionmerger, such Guarantor is Restricted Subsidiary shall be the continuing or surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.and
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (xd) any Restricted Subsidiary that is not a Subsidiary Guarantor may change Dispose of all or substantially all of its fiscal year to conform to the Fiscal Year of the Borrower and (y) assets or merge or consolidate with the consent of the Administrative Agent (or into another Restricted Subsidiary that is not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agenta Subsidiary Guarantor, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactiona Subsidiary Guarantor.
Appears in 4 contracts
Sources: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.)
Fundamental Changes. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock or other equity interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided, except thatthat (a) [the Blocker Corporations may merge or liquidate]any Inactive Subsidiary may (A) liquidate into its immediate parent company or dissolve, (B) merge into any other Inactive Subsidiary or (C) merge into any Obligor, provided that such Obligor is the survivor of such merger, and (b) if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing: continuing (i1) the Company or any Subsidiary may merge with a Person if the Company (or such Subsidiary if the Company is not a party to such merger) is the surviving Person, (2) any Restricted Subsidiary of the Borrower may merge into another Subsidiary or the Company; provided, however, that if the Company is a Loan Party in a transaction in which party to such Loan Party is merger, the Company shall be the surviving entityPerson, provided, further, that if any Subsidiary to such merger is an Obligor, the Obligor shall be the surviving Person, (ii3) any Guarantor Subsidiary may merge sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Company or to an Obligor, or (4) any other Subsidiary may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution does not have a Material Adverse Effect and such Subsidiary liquidates or dissolves into another Obligor or consolidate with any Person in a transaction in which the surviving entity is or becomes a GuarantorCompany; provided provided, that any such merger or consolidation involving a Person that is not a Restricted Wholly-Owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.paragraph 6G.
Appears in 4 contracts
Sources: Note Purchase Agreement, Note Purchase Agreement (Aaron's Inc), Note Purchase Agreement (Aaron's Inc)
Fundamental Changes. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary of may be merged or consolidated with or into any Person and any Subsidiary may be liquidated or dissolved or change its legal form, in each case in order to consummate any Investment otherwise permitted by Section 6.05 or Disposition otherwise permitted by Section 6.11; provided that if the Borrower is a party to any such merger or consolidation transaction, the Borrower shall be the surviving Person in such merger or consolidation;
(b) any Loan Party may merge into a Loan Party or consolidate with any other Person in a transaction in which such Loan Party is the surviving entity, Person in such merger or consolidation; provided that neither the Company nor any of its Restricted Subsidiaries may merge or consolidate with Holdings pursuant to this paragraph (b) except in connection with a Qualifying IPO in which shares of common stock of the Company are publicly offered;
(c) any Subsidiary that is not a Loan Party may merge or consolidate with (i) any other Subsidiary that is not a Loan Party or (ii) any Guarantor may merge into or consolidate with any Person Loan Party (other than Holdings) in a transaction in which such Loan Party is the surviving entity is Person in such merger or becomes a Guarantorconsolidation; and
(d) the Company may be consolidated with or merged into any Person; provided that any Investment in connection therewith is otherwise permitted by Section 6.05; and provided further that, simultaneously with such transaction, (x) the Person formed by such consolidation or into which the Company is merged shall expressly assume all obligations of the Company under the Loan Documents, (y) the Person formed by such consolidation or into which the Company is merged shall be a corporation, limited liability company or limited partnership organized under the laws of a State in the United States and shall take all actions as may be required to preserve the enforceability of the Loan Documents and validity and perfection of the Liens of the Collateral Documents and (z) 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 involving a Person that is not a Restricted Subsidiary immediately prior to and such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment supplement to this Agreement or any Collateral Document comply with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionAgreement.
Appears in 3 contracts
Sources: Credit Agreement (Dole PLC), Credit Agreement (Dole PLC), Credit Agreement (Dole Food Co Inc)
Fundamental Changes. (a) The Borrower will not, and will ------------------- not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entitycorporation, (ii) any Guarantor Subsidiary may merge into or consolidate with any Person Restricted Subsidiary in a transaction in which the surviving entity is or becomes a GuarantorRestricted Subsidiary; provided that any such merger or consolidation -------- involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.046.06, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Restricted Subsidiary, (iv) any Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2v) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person or may sell, transfer, lease or otherwise dispose of its assets in connection with a Permitted Acquisition, transaction in which a Restricted Subsidiary is not the surviving entity or the transferee provided that (x) if the Borrower such transaction is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation 6.06 or dissolution.
(b) The Section 6.10. Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to permit any substantial extent material change in any business other than businesses the character of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year business of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries taken as a whole, as carried on at the date hereof, except as may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment be permitted pursuant to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionAgreement.
Appears in 3 contracts
Sources: Credit Agreement (Pure Resources Inc), Credit Agreement (Pure Resources Inc), Credit Agreement (Pure Resources Inc)
Fundamental Changes. (a) The Holdings and the Borrower will not, and will not permit any Restricted Subsidiary of their respective Subsidiaries to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided that if, except that, if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing: , (i) any Restricted Subsidiary of the Borrower or any Subsidiary may merge into with a Loan Party in Person if the Borrower (or such Subsidiary if the Borrower is not a transaction in which party to such Loan Party merger) is the surviving entityPerson; provided that a Subsidiary Loan Party shall be the surviving Person in a merger between a Subsidiary Loan Party and a Subsidiary that is not a Subsidiary Loan Party, (ii) any Guarantor Subsidiary may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; another Subsidiary, provided that if any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior party to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall not be permitted unless also permitted by Section 8.04the surviving Person, (iii) any Restricted Subsidiary that is not may sell, transfer, lease, dissolve into or otherwise dispose of all or substantially all of its assets to the Borrower or to a Guarantor Subsidiary Loan Party and (iv) any Subsidiary (other than a Subsidiary Loan Party) may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party)Lenders; provided, provided further, that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution7.4.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or businesses reasonably related or ancillary thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionreasonable extensions thereof.
Appears in 3 contracts
Sources: Term Loan Agreement (Root, Inc.), Term Loan Agreement (Root Stockholdings, Inc.), Term Loan Agreement (Root, Inc.)
Fundamental Changes. (a) The Borrower will notExcept as otherwise permitted under this Agreement, and will not permit any Restricted Subsidiary tomerge, merge into or dissolve, liquidate, consolidate with any other Personor into another Person (unless Borrower, such Wholly-Owned Subsidiary, or permit any other Person to merge into or consolidate with itsuch Controlled Subsidiary is the surviving entity), or liquidate Dispose of (whether in one transaction or dissolvein 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, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing: exists or would result therefrom:
(a) any Wholly-Owned Subsidiary may merge with (i) any Restricted Subsidiary of the Borrower, provided that the Borrower may merge into a Loan Party in a transaction in which such Loan Party is shall be the continuing or surviving entityPerson, or (ii) any one or more other Wholly-Owned Subsidiaries, provided that when any Guarantor is merging with another Wholly-Owned Subsidiary, the Guarantor shall be the continuing or surviving Person;
(b) any Wholly-Owned Subsidiary may merge into Dispose of all or consolidate with any Person in a transaction in which substantially all of its assets (upon voluntary liquidation or otherwise) to the surviving entity is Borrower or becomes a Guarantorto another Wholly-Owned Subsidiary; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines transferor in good faith that such liquidation or dissolution a transaction is in a Guarantor, then the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not transferee must either be permitted unless also permitted by Section 8.04; (iv) the Borrower or a Guarantor (or must become a Guarantor);
(c) any Restricted Controlled Subsidiary may merge with any other Person in connection with a Permitted Acquisition(i) the Borrower, provided that (x) if the Borrower is a party to such transaction, the Borrower is shall be the continuing or surviving corporation and (y) if a Guarantor is a party to such transactionPerson, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change any one or more other Wholly-Owned Subsidiaries or Controlled Subsidiaries, provided that when any Guarantor is merging with another Wholly-Owned Subsidiary or Controlled Subsidiary, the Guarantor shall be the continuing or surviving Person;
(d) any Controlled Subsidiary may Dispose of all or substantially all of its Fiscal Year from assets (upon voluntary liquidation or otherwise) to the basis in effect on the Closing Date Borrower or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted another Controlled Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then the transferee must either be the Borrower or a Guarantor (xor must become a Guarantor);
(e) all or substantially all of the assets or all of the Equity Interests of a Wholly-Owned Subsidiary or Controlled Subsidiary may be Disposed of to the extent such Disposition is permitted pursuant to Section 7.05; and
(f) any Restricted Subsidiary may change dissolve, liquidate or wind up its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of affairs at any other Lender) to ensure time provided that such change in Fiscal Year does dissolution, liquidation or winding up, as applicable, could not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionhave a Material Adverse Effect.
Appears in 3 contracts
Sources: Term Loan Agreement (Tanger Properties LTD Partnership /Nc/), Credit Agreement (Tanger Properties LTD Partnership /Nc/), Liquidity Credit Agreement (Tanger Properties LTD Partnership /Nc/)
Fundamental Changes. (a) The Borrower No Loan Party will, or will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itit or any such Subsidiary, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing: continuing or would arise therefrom, (i) any Restricted Subsidiary of the Borrower Loan Party may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person or into the Borrower in a transaction in which the Borrower is the surviving entity corporation, (ii) any Subsidiary may merge or consolidate with or into any other Subsidiary that is a Facility Guarantor in a transaction in which a Facility Guarantor Subsidiary is the Surviving Person, (iii) any Foreign Subsidiary may merge or becomes consolidate with or into any other Foreign Subsidiary, (iv) any Subsidiary of Borrower which is a Facility Guarantor may merge or consolidate with or into any other Subsidiary of Borrower which is a Facility Guarantor, (v) liquidations and dissolutions of Subsidiaries shall be permitted if (x) the Borrower determines in good faith that any such liquidation or dissolution is in the best interests of the Borrower and not materially disadvantageous to the Lenders and (y) to the extent such Subsidiary is a Loan Party, any assets, or business not otherwise disposed of in accordance with Section 6.04 or 6.05, or in the case of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, another Loan Party after giving effect to such liquidation or dissolution and payment of liabilities of such Subsidiary, and (vi) Permitted Acquisitions and asset dispositions permitted pursuant to Section 6.05 hereof may be consummated in the form of a merger, as long as, in the event of a Permitted Acquisition, a Loan Party is the surviving Person; provided that any such merger or consolidation in connection with a Permitted Acquisition involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04.
(b) The Borrower No Loan Party will, or will not, nor will it permit any of its Restricted Subsidiaries Subsidiary to, (i) engage engage, to any substantial extent material extent, in any business other than businesses of the type conducted by the Borrower and its Subsidiaries such Loan Party or such Subsidiary on the Closing Date date of execution of this Agreement and ancillarybusinesses reasonably related thereto, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year manufacture or retailing of the Borrower apparel and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionrelated products.
Appears in 3 contracts
Sources: Credit Agreement (American Apparel, Inc), Credit Agreement (American Apparel, Inc), Credit Agreement (American Apparel, Inc)
Fundamental Changes. (a) The Borrower will notMerge, and will not permit any 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, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary may merge with or liquidate into (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction so long as the Borrower remains organized under the laws of the United States, any state thereof or the District of Columbia (the “Jurisdictional Requirements”)); provided that the Borrower may merge into a Loan Party in a transaction in which such Loan Party is shall be the continuing or surviving entityPerson, or (ii) any Guarantor may merge into one or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantormore other Restricted Subsidiaries; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) when any Restricted Subsidiary that is a Loan Party is merging with another Restricted Subsidiary, (A) a Loan Party shall be the continuing or surviving Person; or (B) to the extent constituting an Investment, such Investment must be an Investment permitted by Section 7.02 and any Indebtedness corresponding to such Investment must be permitted by Section 7.03;
(i) any Subsidiary that is not a Guarantor Loan Party may merge or consolidate with or into any other Subsidiary that is not a Loan Party and (xii) any Subsidiary (other than the Borrower) may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or Borrower;
(y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (ivc) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, order to (i) effect an Investment permitted pursuant to Section 7.02 (provided that (xA) the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 6.12 and (B) to the extent constituting an Investment, such Investment must be a permitted Investment in accordance with Section 7.02) or (ii) to effect the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 6.15; provided that if the Borrower is a party to such transactionany transaction effected pursuant to this Section 7.04(c), (A) the Borrower shall be the continuing and surviving Person or the continuing or surviving Person shall expressly assume the obligations of the Borrower in a manner reasonably acceptable to the Administrative Agent, (B) the Jurisdictional Requirements shall be satisfied, and (C) no Event of Default shall have occurred and be continuing or would result therefrom;
(d) so long as no Default exists or would result therefrom, the Borrower is may (i) merge with any other Person; provided that the Borrower shall be the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may Jurisdictional Requirements shall be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto satisfied or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect legal form to a Restricted Subsidiary limited liability company if the Borrower determines in good faith that was acquired such action is in the best interests of the Borrower; and
(e) so long as no Event of Default exists or formed after would result therefrom, a merger, dissolution, liquidation or consolidation, the Closing Datepurpose of which is to effect a Disposition permitted pursuant to Section 7.05, from the basis in effect on the date such entity became a Restricted Subsidiarymay be effected; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of if the Borrower and is a party to any transaction effected pursuant to this Section 7.04(e), (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayedi) the Borrower shall be the continuing or surviving Person and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by (ii) the Administrative Agent, the Borrower Jurisdictional Requirements shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionbe satisfied.
Appears in 3 contracts
Sources: Credit Agreement (Quintiles Transnational Holdings Inc.), Credit Agreement (Quintiles Transnational Holdings Inc.), Credit Agreement (Quintiles Transnational Holdings Inc.)
Fundamental Changes. (a) The Borrower will notMerge, and will not permit any 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 dissolvePerson, except that, if at the time thereof and immediately after giving effect thereto so long as no Event of Default shall have occurred and be continuing: exists or would result therefrom:
(ia) any Restricted Subsidiary may merge with (i) 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 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 may merge into pursuant to documents reasonably acceptable to the Administrative Agent (any such Person, the “Successor Borrower”); provided, further, that 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 Liens as security for, the Obligations shall apply to such Successor Borrower’s obligations under this Agreement or (ii) any one or more other Restricted Subsidiaries; provided that when any Guarantor is merging with another Restricted Subsidiary, (A) the Guarantor shall be the continuing or surviving Person or (B) such merger shall be treated as if it is an Investment, and such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate accordance with any Person in a transaction in which the surviving entity is or becomes a GuarantorSection 7.02; provided that any in the case of clause (i) of this Section 7.04(a), (x) the Borrower or Successor Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower stating that (1) such merger or consolidation involving complies with this Agreement and (2) if the surviving Person is a Person Successor Borrower and 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 and (y) the Borrower shall have delivered to the Administrative Agent and each Lender any documentation and other information about the Successor Borrower as shall have been reasonably requested in writing by the Administrative Agent or such Lender that the Administrative Agent or such Lender shall have reasonably determined is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted required by Section 8.04regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act;
(iiii) any Restricted Subsidiary that is not a Guarantor Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (ii) any Restricted Subsidiary may liquidate or dissolve, or the Borrower or any Restricted Subsidiary may (xif the perfection and priority of the Liens securing the Obligations is not adversely affected thereby) liquidate or dissolve change its legal form if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests interest of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders (it being understood that (x) in the case of any dissolution of a Restricted Subsidiary that is a Guarantor, such Restricted Subsidiary shall at or before the time of such dissolution transfer its assets to another Restricted Subsidiary that is a Guarantor and (y) merge or consolidate with in the case of any other Person (other than a Loan Party)change in legal form, provided that (1) a Restricted Subsidiary that is the surviving Person and a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(2c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such merger a transaction is a Guarantor, then (i) the transferee must either be the Borrower or consolidation involving a Person that Guarantor or (ii) such Disposition shall be treated as if it is an Investment, and such Investment must be a permitted Investment in a Restricted Subsidiary which is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Loan Party in accordance with Section 8.04; 7.02;
(ivd) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, order to effect an Investment permitted pursuant to Section 7.02; provided that (xi) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if Person shall be a Guarantor is a party to such transactionRestricted Subsidiary, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any which together with each of its Restricted Subsidiaries toSubsidiaries, (i) engage to any substantial extent in any business other than businesses shall have complied with the requirements of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto Section 6.12 or (ii) change its Fiscal Year from the basis such merger shall be treated as if it is an Investment, and such Investment must be a permitted Investment in effect on the Closing Date accordance with Section 7.02; and
(e) a merger, dissolution, liquidation, consolidation or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative AgentDisposition, the Borrower shall have entered into an amendment purpose of which is to this Agreement with the Administrative Agent effect a Disposition permitted pursuant to Section 7.05 (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this than Section 8.03 shall prohibit the consummation of the Transaction7.05(f)(A)).
Appears in 3 contracts
Sources: Second Lien Credit Agreement (TGPX Holdings I LLC), First Lien Credit Agreement (TGPX Holdings I LLC), First Lien Credit Agreement (TGPX Holdings I LLC)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower or any Subsidiary may merge into or consolidate with a Loan Party in a transaction in which such Loan Party Person if (x) the Borrower is the surviving entityPerson or (y) if the Borrower is not a party to such merger or consolidation, such Subsidiary is the surviving Person or the surviving Person is a Subsidiary and to extent required by Section 5.11, shall become a Subsidiary Loan Party pursuant to Section 5.11 at the time required therein, (ii) any Guarantor Subsidiary may merge into or consolidate with into another Subsidiary; provided, that if any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior party to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall not be permitted unless also permitted by the surviving Person or the surviving Person shall become a Subsidiary Loan Party pursuant to Section 8.045.11, (iii) any Restricted Subsidiary that is not may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to a Guarantor Subsidiary Loan Party or in connection with a Disposition permitted pursuant to Section 7.6 (including any mergers or consolidations to effect such Disposition), (iv) the Borrower or any Subsidiary may sell, lease, transfer or otherwise dispose all or substantially all of the stock of any of its Subsidiaries in connection with a Disposition permitted pursuant to Section 7.6 (xincluding any mergers or consolidations to effect such Disposition) and (v) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and in the case of any liquidation or (y) merge or consolidate with any other Person (other than dissolution of a Subsidiary Loan Party), provided all of its assets are transferred to, and all of its liabilities and obligations are assumed by, the Borrower or another Subsidiary Loan Party upon giving effect to such liquidation or dissolution; provided, that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation permitted pursuant to this Section 7.3 involving a Person that is not a Restricted wholly-owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution7.4.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 3 contracts
Sources: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.), Revolving Credit and Term Loan Agreement (Strategic Education, Inc.), Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person (other than as part of the Transactions), except that:
(a) The Borrower will not, and will not permit any Restricted Subsidiary tomay merge, merge into amalgamate or consolidate with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that the Borrower shall be the continuing or surviving Person or (ii) one or more other Restricted Subsidiaries; provided that when any other Person that is a Loan Party is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: ;
(i) any Restricted Subsidiary of the Borrower may merge into that is not a Loan Party in may merge, amalgamate or consolidate with or into any other Subsidiary that is not a transaction in which such Loan Party is the surviving entityParty, (ii) any Guarantor Subsidiary (other than a Borrower) may merge into liquidate or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, dissolve and (iii) any Restricted Subsidiary that is not a Guarantor may change its legal form if, with respect to clauses (xii) liquidate or dissolve if and (iii), the Borrower determines in good faith that such liquidation or dissolution action is in the best interests interest of the Borrower and is its Subsidiaries and if not materially disadvantageous to the Lenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Guarantor or a Borrower or (yii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e)) and 7.03, respectively; and
(d) so long as no Default has occurred and is continuing or would result therefrom, the Borrower may merge or consolidate with any other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the “Successor Company”), (A) the Successor Company shall be an entity organized or existing under the Laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor Company shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Company’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that 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 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 Company’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Borrower under this Agreement; and
(e) so long as no Default has occurred and is continuing or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary may merge or consolidate with any other Person (other than a Loan Party), in order to effect an Investment permitted pursuant to Section 7.02; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if Person shall be a Guarantor is a party to such transactionRestricted Subsidiary of the Borrower, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any which together with each of its Restricted Subsidiaries toSubsidiaries, (i) engage to any substantial extent in any business other than businesses shall have complied with the requirements of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform Section 6.11 to the Fiscal Year of extent required pursuant to the Borrower Collateral and Guarantee Requirement;
(y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayedf) the Borrower and its the Restricted Subsidiaries may change their Fiscal Year to end on December 31 consummate the Merger, related transactions contemplated by the Transaction Agreement (and documents related thereto) and the Transactions; and
(g) so long asas no Default has occurred and is continuing or would result therefrom, if requested by the Administrative Agenta merger, dissolution, liquidation, consolidation or Disposition, the Borrower shall have entered into an amendment purpose of which is to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) effect a Disposition permitted pursuant to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction7.05.
Appears in 3 contracts
Sources: Credit Agreement (APX Group Holdings, Inc.), Credit Agreement (APX Group Holdings, Inc.), Credit Agreement (APX Group Holdings, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, wind up, consolidate with or into another Person, reorganize, enter into a plan of reorganization, recapitalization or reclassify its Equity Interests (or agree to do any of the foregoing, unless such agreement provides as a condition to the consummation of the transaction that either (y) the Required Lenders have consented in writing, or (z) (i) the Aggregate Commitments have been terminated or will be terminated concurrently with such effectiveness, (ii) all of the Secured Obligations (other than contingent indemnification obligations for which no claim has been asserted) have been indefeasibly paid in full in cash or will be indefeasibly paid in full in cash concurrently with such effectiveness, (iii) all L/C Obligations have been, or will be concurrently with such effectiveness, reduced to zero (or fully Cash Collateralized or supported by another letter of credit in a manner reasonably satisfactory to the L/C Issuer and the Administrative Agent, and (iv) the Administrative Agent has, or will have concurrently with such effectiveness, no further obligation to cause the L/C Issuer to issue Letters of Credit under the Credit Agreement), except that, so long as no Default or Event of Default shall have occurred and be continuing prior to or immediately after giving effect to any action described below or would result therefrom:
(a) The any Subsidiary that is not a Loan Party may merge with (i) a Loan Party, provided that the Loan Party shall be the continuing or surviving Person (or the surviving Person shall become a Loan Party hereunder and otherwise satisfy the requirements of Section 6.12 upon the consummation of such merger) and if a Borrower will notis party to such merger, and will not permit such Borrower shall be the continuing or surviving Person, or (ii) any Restricted one or more other Subsidiaries other than a Loan Party, provided that in each case, to the extent that any wholly-owned Subsidiary tois merging with another Subsidiary, a wholly-owned Subsidiary shall be the continuing or surviving Person;
(b) any Loan Party may merge into any other Loan Party; provided that in the case of any merger involving a Borrower, such Borrower shall be the continuing or surviving Person;
(c) any Borrower may merge into any other Borrower;
(d) in connection with a Permitted Acquisition, any Loan Party other than a Borrower may merge with or into or consolidate with any other Person, Person or permit any other Person to merge with or into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any the Person surviving such merger or consolidation involving shall be a Person Loan Party;
(e) any CFC that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) Loan Party may merge into any Restricted Subsidiary CFC that is not a Guarantor may Loan Party; and
(xf) liquidate any Subsidiary or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person Loan Party (other than a Loan Party), provided that (1Borrower) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted constituting an Immaterial Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutiondissolved.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 3 contracts
Sources: Credit Agreement (Coldwater Creek Inc), Credit Agreement (Coldwater Creek Inc), Credit Agreement (Coldwater Creek Inc)
Fundamental Changes. (a) The Parent Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party the Parent Borrower in a transaction in which such Loan Party the Parent Borrower is the surviving entitycorporation, (ii) any Guarantor Subsidiary (other than a Foreign Borrower or a Foreign Subsidiary Guarantor) may merge into or consolidate with any Person Subsidiary Loan Party in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04Loan Party, (iii) any Restricted Foreign Subsidiary may merge into any other Foreign Subsidiary in a transaction in which the surviving entity is a Subsidiary and (if any party to such merger is a Foreign Borrower) a Foreign Borrower or (if any such party to such merger is a Foreign Subsidiary Guarantor and no party to such merger is a Foreign Borrower) a Foreign Subsidiary Guarantor, (iv) any Subsidiary (other than a Foreign Borrower) may merge into any other Person that is not becomes a Guarantor Subsidiary Loan Party in connection with a Permitted Acquisition and (v) any Subsidiary (other than a Subsidiary Loan Party, a Foreign Borrower or a Foreign Subsidiary Guarantor) may (x) liquidate or dissolve if the Parent Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Parent Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party)Lenders, provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04.
(b) The Parent Borrower will not, nor and will it not permit any of its Restricted the Subsidiaries to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Parent Borrower and its the Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent execution of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionany Related Business.
Appears in 3 contracts
Sources: Credit Agreement (Knowles Electronics LLC), Credit Agreement (Knowles Electronics LLC), Credit Agreement (Knowles Electronics LLC)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of the assets of the Borrower and its Subsidiaries on a consolidated basis (in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided that if, except that, if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing: , (i) any Restricted Subsidiary of the Borrower or any Subsidiary may merge into with a Person if the Borrower (or such Subsidiary if the Borrower is not a party to such merger and if any party to such merger is a Subsidiary Loan Party, a Subsidiary Loan Party in shall be the surviving Person (unless the Borrower is a transaction party thereto, in which such Loan Party case the Borrower shall be the surviving Person)) is the surviving entityPerson, (ii) any Guarantor Subsidiary may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; another Subsidiary, provided that if any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior party to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall not be permitted unless also permitted by Section 8.04the surviving Person, (iii) any Restricted Subsidiary that is not may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to a Guarantor Subsidiary Loan Party, (iv) any Subsidiary may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders Lenders; provided that if such Subsidiary is a Subsidiary Loan Party, the assets of such Subsidiary shall be distributed to the Borrower or a Subsidiary Loan Party, (yv) merge subject to clause (ii), any Subsidiary may merge, dissolve or consolidate in connection with the consummation of any other Person (other than a Loan Party)Permitted Acquisition, provided that (1) a Restricted Subsidiary is the surviving Person and (2vi) any such merger or consolidation involving a Person Subsidiary that is not a Restricted Subsidiary immediately prior Loan Party may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if of the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionBorrower.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date date hereof and ancillary, complementary businesses ancillary or reasonably related thereto to, or (ii) change its Fiscal Year from extensions of, the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year business of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionSubsidiaries.
Appears in 3 contracts
Sources: Credit Agreement (Pennant Group, Inc.), Credit Agreement (Pennant Group, Inc.), Credit Agreement (Pennant Group, Inc.)
Fundamental Changes. (a) The Each of Parent and Borrower will shall not, and will shall not permit any Restricted Subsidiary other member of the Consolidated Group to, merge into or merge, 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 dissolvePerson, except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing: exists or would result therefrom:
(a) any Subsidiary may merge or consolidate with (i) any Restricted Subsidiary of Borrower, provided that Borrower shall be the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the continuing or surviving entityPerson, or (ii) any one or more other Subsidiaries, provided that when any Subsidiary Guarantor is merging with another Subsidiary, the continuing or surviving Person shall be or become a Subsidiary Guarantor;
(b) any Subsidiary may dissolve or liquidate into (i) Borrower, provided that Borrower shall be the continuing or surviving Person, or (ii) another Subsidiary; provided that when any Subsidiary Guarantor is dissolving or liquidating into another Subsidiary, the continuing or surviving Person shall be or become a Subsidiary Guarantor;
(c) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Borrower or to another Subsidiary; provided that if the transferor in such a transaction is a Subsidiary Guarantor, then the transferee must either be Borrower or a Subsidiary Guarantor;
(d) Borrower or any Subsidiary may merge into or consolidate with any Person in that is not a transaction in which member of the surviving entity Consolidated Group so long as: (i) after giving effect to such merger or consolidation, no Default has occurred and is or becomes a Guarantorcontinuing; provided that any (ii) if such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger with Borrower, then Borrower shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (viii) if such merger or consolidation is with a Subsidiary Guarantor, then the continuing or surviving Person shall be or become a Subsidiary Guarantor; and
(e) any Subsidiary may Dispose of all or substantially all of its assets in a Disposition permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
Section 9.04 (b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction9.04(f)).
Appears in 3 contracts
Sources: Credit Agreement (Rexford Industrial Realty, Inc.), Credit Agreement (Rexford Industrial Realty, Inc.), Credit Agreement (Rexford Industrial Realty, Inc.)
Fundamental Changes. (a) The Prior to the Acquisition Closing Date, the Borrower will not, and will not permit any Restricted Subsidiary, and, after the Acquisition Closing Date, Parent will not, and will not permit any 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, 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 of (other than, following the Borrower Acquisition Closing Date, Holdco and the Borrower) may merge into a 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, following the Acquisition Closing Date, Holdco and the Borrower) may merge into or consolidate or amalgamate with any Loan Party in a transaction in which (as long as (A) such Loan Party is the surviving entity, (iiB) any Guarantor may merge into or consolidate with any Person in a transaction in which the such surviving entity is or becomes a Guarantor; provided that any Loan Party substantially concurrently with the consummation of such merger transaction and complies with Section 5.11 and Section 5.12, (C) if such Subsidiary is an Unrestricted Subsidiary, and Indebtedness of or consolidation involving a Person that Lien granted on the assets of such Subsidiary is not a Restricted permitted by Section 6.01 or 6.02 and (D) the disposition of such Loan Party would otherwise be permitted under Section 6.05 (other 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 merger transaction (and shall not be permitted unless also permitted by Section 8.04deemed to be so disposed or redesignated), (iii) any Restricted Subsidiary that is not a Guarantor Loan Party may merge into or consolidate or amalgamate with (xA) liquidate or dissolve if the Borrower determines in good faith any other Restricted Subsidiary that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders a Loan Party or (yB) merge any Loan Party, (iv) the Borrower, Parent or consolidate with any other Person Restricted Subsidiary may consummate any Investment permitted by Section 6.04 (other than Section 6.04(aa)) (whether through a Loan Partymerger, consolidation, amalgamation or otherwise), provided that (1A) a Restricted Subsidiary is the surviving Person entity shall be subject to the requirements of Section 5.11 and Section 5.12 (to the extent applicable) and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (xB) if the Parent, Holdco or the Borrower is a party to such transaction, the Borrower is Parent, Holdco or the continuing or surviving corporation and (y) if a Guarantor is a party to such transactionBorrower, such Guarantor is as the case may be, shall be the surviving Person; and entity or such surviving Person shall assume the obligations of the Parent, Holdco or the Borrower, as the case may be, hereunder, (v) any Restricted Subsidiary (other than, following the Acquisition Date, Holdco or the Borrower) may consummate any sale, transfer or other disposition permitted sale or disposition under Section 8.05 may be effectuated pursuant to Section 6.05 (other than Section 6.05(l)) (whether through a merger, consolidation, liquidation amalgamation or dissolutionotherwise), 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 Borrower, the Miami 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, consolidation or amalgamation is not the Parent, Holdco or the Borrower (any such Person, the “Successor Company”), no Default and Event of Default shall have occurred and be continuing and (A) in the case of a merger, consolidation or amalgamation involving the Borrower, the Successor Company shall be an entity organized or existing under the laws of the United States, any state thereof, the District of Columbia or any territory thereof, (B) 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 Company shall expressly assume all the obligations of the 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 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 to applicable Security Documents confirmed that its obligations thereunder shall apply to the Successor Company’s obligations under the Loan Documents, (F) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guaranty as reaffirmed pursuant to clause (C) and (F) the Successor Company shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplements preserve the enforceability of the Guarantee and the perfection and priority of the Liens under the applicable Security Documents; provided, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, the Parent, Holdco or the Borrower, as the case may be, under this Agreement.
(b) The Prior to the Acquisition Closing Date, the Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary, and, after the Acquisition Closing Date, Parent will not, and will not permit any Restricted Subsidiary to, liquidate or dissolve, except that: (i) engage to any substantial extent in any business other than businesses Subsidiary of the type conducted by the Borrower and any Subsidiary of the Parent (other than the Borrower) may transfer all or any portion of its Subsidiaries on the Closing Date and ancillaryassets (upon liquidation, complementary dissolution, winding-up or reasonably related thereto or any similar transaction) to any other Loan Party, (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a any Restricted Subsidiary that was acquired is not a Loan Party may transfer all or formed after any portion of its assets (upon liquidation, dissolution, winding-up or any similar transaction) to the Closing Date, from the basis in effect on the date such entity became a Parent or any Restricted Subsidiary; provided that , (xiii) 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 fiscal year to conform to the Fiscal Year of the Borrower and legal form, (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayedv) the Borrower Parent and its the Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long aseffect the Permitted Tax Restructuring and (vi) any Restricted Subsidiary (other than the Borrower) may transfer all or any portion of its assets (upon liquidation, if requested by the Administrative Agentdissolution, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of winding-up or any other Lendersimilar transaction) to ensure that such change any Person in Fiscal Year does not materially adversely affect the rights of the Lenders order to effect an Investment permitted pursuant to Section 6.04 (other than Section 6.04(aa)) or the Borrower under this Agreement and a sale, transfer or other disposition permitted pursuant to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction6.05 (other than Section 6.05(l)).
Appears in 3 contracts
Sources: Credit Agreement (Micro Focus International PLC), Credit Agreement (Seattle SpinCo, Inc.), Credit Agreement (Micro Focus International PLC)
Fundamental Changes. (a) The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entitycorporation, (ii) any Guarantor Subsidiary (other than the Borrower) may merge into or consolidate with any Person Subsidiary Loan Party in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04Loan Party, (iii) any Restricted Subsidiary that is not a Guarantor (other than the Borrower) may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or and (yiv) any Subsidiary may merge or consolidate with any other Person (other than another entity to implement a Loan Party), Permitted Acquisition; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.046.04; (iv) provided further that this Section shall not be construed to prohibit consummation of the Borrower or any Restricted Subsidiary may merge AHC Merger and the DAP Merger in accordance with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionMerger Agreement.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower Borrower, DAP and its Subsidiaries their respective subsidiaries on the Closing Effective Date and ancillary, complementary or businesses reasonably related thereto thereto.
(c) Holdings will not engage in any business or (ii) change its Fiscal Year from activity other than the basis in effect on ownership of all the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year outstanding shares of capital stock of the Borrower and activities incidental thereto. Holdings will not own or acquire any assets (y) with the consent other than shares of capital stock of the Administrative Agent Borrower, cash, promissory notes held pursuant to clause (g)(i) of Section 6.04 and Permitted Investments) or incur any liabilities (other than liabilities under the Loan Documents, the Holdings Senior Discount Debentures, liabilities imposed by law, including tax liabilities, and other liabilities incidental to its existence and permitted business and activities). Holdings will not to be unreasonably withheldhave any Subsidiaries, conditioned or delayed) other than the Borrower and its Restricted Subsidiaries may change their Fiscal Year Subsidiaries.
(d) Prior to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionDAP Merger, Newco Sub will not engage in any business or activity. Newco Sub will not own or acquire any assets or incur any liabilities. Newco Sub will not have any subsidiaries.
Appears in 3 contracts
Sources: Credit Agreement (Advance Auto Parts Inc), Credit Agreement (Advance Stores Co Inc), Credit Agreement (Advance Auto Parts Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary other Loan Party to, merge merge, amalgamate into or consolidate with any other Person, or permit any other Person to merge merge, amalgamate into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing: continuing or would arise therefrom, (i) any Restricted Subsidiary of may merge, consolidate or amalgamate into the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the Borrower is the surviving entity corporation, (ii) any Subsidiary that is not the Borrower may merge, consolidate or becomes amalgamate into any Subsidiary that is not the Borrower, (iii) Permitted Acquisitions and asset dispositions permitted pursuant to SECTION 6.05 hereof and Permitted Investments of the type described in clauses (p) and/or (q) of the definition of “Permitted Investment” may be consummated in the form of a Guarantor; merger, consolidation or amalgamation, as long as, in the event of a Permitted Acquisition, the surviving Person is, or as and to the extent required by SECTION 5.12 becomes, a Loan Party, provided that any such merger merger, consolidation or consolidation amalgamation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger merger, consolidation or amalgamation shall not be permitted unless also permitted by Section 8.04SECTION 6.04, (iiiiv) any Restricted Subsidiary that is not a Facility Guarantor may consummate a dissolution or liquidation, the purpose of which is to effect an asset disposition permitted pursuant to SECTION 6.05, and (xv) any Facility Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous adverse to the Lenders Lenders. To the extent that any Facility Guarantor is merged, consolidated or (y) merge amalgamated with or consolidate with into any other Loan Party (or any Person in a transaction permitted under clause (other than a Loan Partyiii) above) or liquidated or dissolved, in each case, as permitted under this clause (a), provided that (1) a Restricted Subsidiary is the surviving Person and (2) such Facility Guarantor shall be released from its obligations under any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior Facility Guarantee to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower which it is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionparty.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries other Loan Party to, (i) engage engage, to any substantial extent material extent, in any business other than businesses business of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect such Loan Party on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent execution of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionbusinesses reasonably related or reasonably ancillary thereto.
Appears in 3 contracts
Sources: Credit Agreement (Pier 1 Imports Inc/De), Credit Agreement (Pier 1 Imports Inc/De), Credit Agreement (Pier 1 Imports Inc/De)
Fundamental Changes. (a) The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, otherwise Dispose of all or liquidate substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate, divide or dissolve, except provided, however, that, (1) any Loan Party may consummate a Permitted Acquisition, (2) any Loan Party may make a Disposition to the extent permitted under Section 6.05, and (3) 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 any Borrower may merge into a Loan Party Borrower in a transaction in which such Loan Party a Borrower is the surviving entity, (ii) any Guarantor Borrower may merge into or consolidate with another Borrower, (iii) any Person Loan Party (other than any Borrower) may merge into any other Loan Party in a transaction in which the surviving entity is a Loan Party and (iv) any Subsidiary that is not a Loan Party may liquidate, divide or becomes a Guarantordissolve if the Borrowers determine in good faith that such liquidation, division or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lender; provided provided, further that any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04.
(b) The Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower Borrowers and its their Subsidiaries on the Closing Date date hereof and ancillary, complementary or businesses reasonably related thereto or thereto.
(iic) No Loan Party will, nor will it permit any Subsidiary to change its Fiscal Year fiscal year or any fiscal quarter from the basis in effect on the Closing Date or with respect to Effective Date.
(d) No Loan Party will change the accounting basis upon which its financial statements are prepared.
(e) No Loan Party will, nor will it permit any Subsidiary to, consummate a Restricted Subsidiary that was acquired or formed after Division as the Closing DateDividing Person, from without the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the prior written consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) Lender. Without limiting the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long asforegoing, if requested by any Loan Party that is a limited liability company consummates a Division (with or without the Administrative Agentprior consent of Lender as required above), the Borrower each Division Successor shall have entered into an amendment be required to this Agreement comply with the Administrative Agent (which amendment shall not require obligations set forth in Section 5.14 and the consent of any other Lender) to ensure that such change further assurances obligations set forth in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower Loan Documents and become a Loan Party under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionother Loan Documents.
Appears in 3 contracts
Sources: Credit Agreement (CRAWFORD UNITED Corp), Credit Agreement (CRAWFORD UNITED Corp), Credit Agreement (CRAWFORD UNITED Corp)
Fundamental Changes. (a) The Borrower None of the Company or any Subsidiary will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: , (i) any Restricted Subsidiary of Person (other than the Borrower Company) may merge into a Loan Party or consolidate with any Borrower in a transaction in which such Loan Party a Borrower (including, for the avoidance of doubt, the Company) is the surviving entity, (ii) any Guarantor Person (other than the Company) may merge into or consolidate with any Person Subsidiary in a transaction in which the surviving entity is or becomes a Guarantor; provided that Subsidiary (and, if any party to such merger or consolidation involving is a Person that Subsidiary Loan Party, is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04Loan Party), (iii) any Restricted Subsidiary that may merge into or consolidate with any Person (other than the Company) in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Guarantor Subsidiary; provided that if such Subsidiary is a Borrowing Subsidiary, such Subsidiary shall prior to or simultaneously with such merger or consolidation enter into a Borrowing Subsidiary Termination, (iv) any Subsidiary may merge, consolidate or amalgamate with any other Person in order to effect an Investment permitted pursuant to Section 6.04; provided that if such Subsidiary is a Subsidiary Loan Party the continuing or surviving Person shall be a Subsidiary Loan Party and (xv) any Subsidiary (other than the Company or any Subsidiary Loan Party) may liquidate or dissolve if the Borrower Company determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Company and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), Lenders; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted wholly-owned Subsidiary immediately prior to such merger thereto shall not be permitted unless it is also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation 6.04 or dissolution6.05.
(b) The Borrower None of the Company or any Subsidiary will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower Company and its the Subsidiaries on the Closing Effective Date and ancillarybusinesses reasonably related, complementary ancillary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionincidental thereto.
Appears in 3 contracts
Sources: Credit Agreement (Minerals Technologies Inc), Refinancing Facility Agreement (Minerals Technologies Inc), Credit Agreement (Minerals Technologies Inc)
Fundamental Changes. (a) The Borrower and Parent will not, and will not permit any 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, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entityor amalgamate with Borrower, (ii) any Guarantor Restricted Subsidiary may merge into or consolidate amalgamate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04Subsidiary, (iii) any Restricted Subsidiary that is not (other than a Guarantor Loan Party) may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders Lenders, and (iv) Borrower or (y) merge any Restricted Subsidiary may merge, amalgamate or consolidate with any other Person (other than if in the case of a Loan Party)merger, provided that (1) a Restricted Subsidiary amalgamation or consolidation of Borrower, Borrower is the surviving Person and (2) corporation or the amalgamated corporation resulting from such amalgamation continues to be liable for the Obligations of the Borrower under the Loan Documents or applicable law, and, in any such merger other case, the surviving corporation or consolidation involving amalgamated corporation is a Person that is not a wholly-owned Restricted Subsidiary immediately prior to and such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if has complied with the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation requirements of Section 5.12 and (y) if a Guarantor is a party to shall have assumed and ratified all obligations of any Restricted Subsidiary involved in such transaction, such Guarantor is the surviving Person; and (v) any permitted sale merger or disposition under Section 8.05 may be effectuated amalgamation pursuant to a merger, consolidation, liquidation or dissolutiondocumentation in form and substance satisfactory to the Administrative Agent.
(b) The Borrower and Parent will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent execution of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionbusinesses reasonably related thereto.
Appears in 3 contracts
Sources: Credit Agreement (Lone Pine Resources Inc.), Credit Agreement (Lone Pine Resources Inc.), Credit Agreement (Forest Oil Corp)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person; provided that, notwithstanding the foregoing provisions of this Section 9.4 but subject to the terms of Section 8.12, (a) The the Borrower will not, and will not permit any Restricted Subsidiary to, 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, 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 of Subsidiary; provided that the Borrower may merge into a Loan Party in a transaction in which such Loan Party is shall be the continuing or surviving entity, (iib) any Guarantor Domestic Subsidiary may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person Domestic Subsidiary; provided that if a Credit Party is a party thereto then a Credit Party shall be the continuing or surviving entity or the surviving entity shall become a Credit Party immediately upon the consummation of such transaction, (other than c) any Foreign Subsidiary may merge or consolidate with any Domestic Subsidiary; provided that a Loan PartyDomestic Subsidiary shall be the continuing or surviving entity (and if a Credit Party is a party thereto then a Credit Party shall be the continuing or surviving entity), provided that (1) a Restricted Subsidiary is the surviving Person and (2d) any such merger Foreign Subsidiary may be merged or consolidation involving a consolidated with or into any other Foreign Subsidiary, (e) any Subsidiary may merge with any Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person Credit Party in connection with a Permitted AcquisitionDisposition permitted under Section 9.5 or an Acquisition or Investment permitted pursuant to Section 9.2; provided that, provided that if such transaction (xA) if involves the Borrower is a party to such transactionBorrower, the Borrower is shall be the continuing or surviving corporation and (yB) if involves a Guarantor is Credit Party (other than the Borrower), such Credit Party shall be the continuing or surviving corporation or the surviving entity or shall become a party to Credit Party immediately upon the consummation of such transaction, such Guarantor is the surviving Person; and (vf) any permitted sale Subsidiary may dissolve, liquidate or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit wind up its affairs at any of its Restricted Subsidiaries to, time if such Subsidiary (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto is not a Credit Party or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect own any assets or engage in any business at the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light time of such change dissolution, liquidation or wind up provided that, in Fiscal Year and fiscal periods. For the avoidance of doubteach case, nothing in this Section 8.03 shall prohibit the consummation of the Transactionsuch dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect.
Appears in 3 contracts
Sources: Credit Agreement (Orbital Sciences Corp /De/), Credit Agreement (Orbital Sciences Corp /De/), Credit Agreement (Orbital Sciences Corp /De/)
Fundamental Changes. (a) The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, merge into into, amalgamate or consolidate or amalgamate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the assets (whether now owned or hereafter acquired) of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole, to or in favor of any Person (other than as part of the Transactions), except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary (other than International Holdings or any Intermediate Holdco) may merge, amalgamate, consolidate or amalgamate with (A) the Borrower; provided that the Borrower shall be the continuing or surviving Person or (B) one or more other Restricted Subsidiaries of the Borrower may merge into Borrower; provided that, except with the consent of the Required Lenders (such consent not to be unreasonably withheld, conditioned or delayed; provided, that it is acknowledged and agreed that it shall not be unreasonable to withhold consent to any such transaction that will have a Loan Party in a transaction in which such material adverse impact on the Guarantees or the Collateral), when any Domestic Subsidiary Guarantor or any Canadian Loan Party is the surviving entitymerging, (ii) any Guarantor may merge into consolidating or consolidate amalgamating with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a other Restricted Subsidiary immediately prior the continuing or surviving Person shall be a Domestic Subsidiary Guarantor or a Canadian Loan Party; provided, further that, except with the consent of the Required Lenders (such consent not to such merger be unreasonably withheld, conditioned or delayed; provided, that it is acknowledged and agreed that it shall not be permitted unless also permitted by Section 8.04unreasonable to withhold consent to any such transaction that will have a material adverse impact on the Guarantees or the Collateral), when any European Loan Party is merging, consolidating or amalgamating with any other Restricted Subsidiary the continuing or surviving Person shall be a Domestic Subsidiary Guarantor, a Canadian Loan Party or Subsidiary Loan Party organized in the same Specified Jurisdiction as such European Loan Party;
(iiib) any Restricted Subsidiary that is not a Guarantor (other than International Holdings or any Intermediate Holdco) may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests of Holdings, the Borrower and the Restricted Subsidiaries, taken as a whole, and is not materially disadvantageous to the Lenders Lenders;
(c) any Restricted Subsidiary (other than International Holdings or any Intermediate Holdco) may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to any other 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 (other than Holdings, International Holdings or an Intermediate Holdco), (B) to the extent constituting an Investment, such Investment must be an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 and Section 6.16 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 and any promissory note or other non-cash consideration received in respect thereof is an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 and Section 6.16; provided that the aggregate amount of Dispositions made in reliance on subclauses (B) and (C) of this clause (c), together with (x) all other Investments made in and Dispositions made to Restricted Subsidiaries that are not Loan Parties by any Loan Party after the Effective Date and (y) merge all Investments and Dispositions made in reliance on Section 6.16(ii), shall not exceed, at the time of the making thereof, and after giving pro forma effect thereto, $7,500,000;
(d) the Borrower may merge, amalgamate or consolidate with any other Person (other than a Loan PartyHoldings, International Holdings or any Intermediate Holdco), ; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is shall be the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.;
(be) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, [reserved];
(i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (xf) any Restricted Subsidiary may change its fiscal year merge, consolidate or amalgamate with any other Person (other than Holdings, International Holdings or any Intermediate Holdco) in order to conform effect an Investment permitted pursuant to Section 6.04; provided that the Fiscal Year of the Borrower and (y) continuing or surviving Person shall be a Restricted Subsidiary, which shall have complied with the requirements of Sections 5.11 and 5.12; provided further, that no such merger, consolidation or amalgamation involving any European Loan Party shall be permitted pursuant to this clause (f) unless the same has been consented to by the Required Lenders (such consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed; provided, that it is acknowledged and agreed that it shall not be unreasonable to withhold consent to any such transaction that will have a material adverse impact on the Guarantees or the Collateral);
(g) [reserved];
(h) [reserved]; and
(i) any Restricted Subsidiary (other than International Holdings or any Intermediate Holdco) may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 6.05; provided further, that no such merger, consolidation or amalgamation involving any European Loan Party shall be permitted pursuant to this clause (i) unless the Borrower and its Restricted Subsidiaries may change their Fiscal Year same has been consented to end on December 31 so long as, if requested by the Administrative AgentRequired Lenders (such consent not to be unreasonably withheld, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment conditioned or delayed; provided, that it is acknowledged and agreed that it shall not require be unreasonable to withhold consent to any such transaction that will have a material adverse impact on the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders Guarantees or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionCollateral).
Appears in 3 contracts
Sources: Forbearance Agreement and First Omnibus Amendment to Credit Agreement and Loan Documents (Endurant Capital Management LP), Forbearance Agreement and First Omnibus Amendment to Credit Agreement and Loan Documents (TENOR CAPITAL MANAGEMENT Co., L.P.), Forbearance Agreement and First Omnibus Amendment to Credit Agreement and Loan Documents (DG Capital Management, LLC)
Fundamental Changes. (a) The Parent Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing: continuing (ia) any Restricted Subsidiary of the Borrower Person may merge into a Loan Party the Parent Borrower in a transaction in which such Loan Party the Parent Borrower is the surviving entitycorporation, (iib) any Guarantor Person may merge into or consolidate with any Person in a transaction in which Wholly Owned Subsidiary Guarantor so long as the surviving entity is or becomes a Wholly Owned Subsidiary Guarantor; provided that , (c) any Subsidiary may Dispose of its assets to the Parent Borrower or any Wholly Owned Subsidiary Guarantor pursuant to a transaction of liquidation or dissolution, (d) the Parent Borrower or any Subsidiary may Dispose of any Subsidiary pursuant to a merger of such merger or consolidation involving Subsidiary in a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also Disposition permitted by Section 8.046.6, (iiie) any Restricted Foreign Subsidiary or other Subsidiary that is not a Subsidiary Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person so long as the surviving entity is a Subsidiary (other than a Loan Party), provided that (1) in the case of a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Foreign Subsidiary Borrower, the surviving entity is a Borrower) or Dispose of its assets to any other Subsidiary pursuant to a transaction of liquidation or dissolution and (f) the Parent Borrower may merge or consolidate into any other Person that so long as (i) the surviving entity assumes all the Obligations of the Parent Borrower hereunder and under the other Loan Documents pursuant to a written agreement satisfactory to the Administrative Agent, (ii) the surviving entity is not organized under the laws of a Restricted Subsidiary immediately jurisdiction within the United States of America, (iii) no Default or Event of Default shall have occurred and be continuing, or would occur after giving effect to such merger, (iv) the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to such merger or consolidation, as applicable, with the covenants contained in Section 6.1, in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower for which the relevant information is available as if such merger or consolidation had occurred on the first day of each relevant period for testing such compliance (as demonstrated in a certificate of a Financial Officer delivered to the Administrative Agent at least ten Business Days prior to such merger shall not be permitted unless also permitted by Section 8.04; (ivor consolidation) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale all filings have been made under the Uniform Commercial Code or disposition under Section 8.05 may be effectuated otherwise that are required in order for the Collateral Agent to continue at all times following such merger or consolidation to have a valid, legal and perfected security interest in all the Collateral to the same extent as prior to such merger or consolidation. It is understood that no transaction pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 6.4 shall prohibit the consummation of the Transactionbe permitted unless any Investment or Disposition made in connection therewith is also expressly permitted by Section 6.5 or 6.6, as applicable.
Appears in 3 contracts
Sources: Credit Agreement (SPX Corp), Credit Agreement (SPX Corp), Credit Agreement (SPX Corp)
Fundamental Changes. Merge, wind up, dissolve or liquidate into or consolidate with (or any local law equivalent thereof) any Person or permit any Person to merge, liquidate into it, or consummate a Division as the Dividing Person, or permit any Subsidiary of the Parent Borrower to do so, except that:
(a) The any Domestic Subsidiary may merge, wind up, dissolve or liquidate into or consolidate with (i) the Parent Borrower; provided that the Parent Borrower will notshall be the continuing or surviving Person of such transaction or (ii) any one or more other Domestic Subsidiaries; provided that, and will if the merger, wind up, dissolution, liquidation or consolidation involves a Guarantor, the continuing or surviving Person of such transaction shall either be such Guarantor or become a Guarantor pursuant to the terms of Section 5.10;
(b) any Foreign Subsidiary may merge, wind up, dissolve or liquidate into or consolidate with (i) any one or more other Foreign Subsidiaries (provided that, if the merger, windup, dissolution, liquidation or consolidation involves a Designated Subsidiary Borrower, the continuing or surviving Person of such transaction shall be a Designated Subsidiary Borrower) or (ii) except to the extent such Foreign Subsidiary is a Designated Subsidiary Borrower, with any Domestic Subsidiary (provided that such Domestic Subsidiary is the continuing or surviving Person of such transaction);
(c) any Subsidiary that is not permit any Restricted Subsidiary toa Loan Party may merge, merge wind up, dissolve or liquidate into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor Loan Party;
(d) any Subsidiary may (x) merge, wind up, dissolve or liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge into or consolidate with another Person to effectuate an Investment permitted under Section 6.06 (including any other Person merger, windup, dissolution, liquidation or consolidation to effectuate a Permitted Acquisition) or any Disposition permitted under Section 6.05 (other than a Loan Partyclause (b) thereof), provided that ;
(1) a Restricted Subsidiary is the surviving Person and (2e) any such merger or consolidation involving a Person Subsidiary that is an LLC may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Domestic Loan Parties at such time, or, with respect to assets not so held by one or more Domestic Loan Parties, such Division, in the aggregate, would otherwise result in a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also Disposition permitted by Section 8.04; 6.05 (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
than clause (b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, thereof); and
(if) engage to any substantial extent in any business other than businesses of the type conducted by the Parent Borrower and its Subsidiaries on may effectuate the Closing Date and ancillary, complementary or reasonably related thereto Spin-Off Transactions to the extent (i) described in the Registration Statement or (ii) change its Fiscal Year from otherwise disclosed in writing by the basis in effect on Parent Borrower to the Closing Administrative Agent and the Lenders prior to the Effective Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that and (x) any Restricted Subsidiary may change its fiscal year to conform to filed by the Fiscal Year of Parent Borrower with the Borrower and SEC and/or (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested obtained by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders Company or the Parent Borrower under this Agreement and to otherwise appropriately update from the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionIRS.
Appears in 3 contracts
Sources: Credit Agreement (Atmus Filtration Technologies Inc.), Credit Agreement (Atmus Filtration Technologies Inc.), Credit Agreement (Cummins Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any 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, 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 of the Borrower Person may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity, (ii) any Guarantor Person (other than the Borrower) may merge into or consolidate with any Person Restricted Subsidiary in a transaction in which the surviving entity is or becomes a Guarantor; provided that Restricted Subsidiary (and, if any party to such merger or consolidation involving is a Person that Guarantor, the surviving entity is not a Restricted Subsidiary immediately prior to such merger Guarantor or shall not be permitted unless also permitted by Section 8.04contemporaneously therewith become a Guarantor), (iii) any Restricted Subsidiary that may merge into or consolidate with any Person (other than the Borrower) in a transaction permitted under Section 6.08 in which, after giving effect to such transaction, the surviving entity is not a Guarantor Subsidiary and (iv) any Subsidiary may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is (A) in the best interests of the Borrower and is (B) would not have a materially disadvantageous to adverse effect on the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is interests of the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionLenders.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, sell, transfer, lease, license or otherwise dispose of (iin one transaction or in a series of transactions, and whether directly or through any merger or consolidation) assets representing all or substantially all the consolidated assets of the Borrower and the Restricted Subsidiaries (whether now owned or hereafter acquired), taken as a whole (it being understood that this paragraph (b) shall not restrict sales, transfers, leases, licenses or other disposition of assets between or among the Borrower and its Restricted Subsidiaries).
(c) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any substantial material extent in any business other than businesses and activities of the type conducted by the Borrower and its Restricted Subsidiaries on the Closing Availability Date and ancillaryany business and activities of the type contemplated by or referred to in the Registration Statement and businesses and activities reasonably related, incidental or complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date that are reasonable extensions, developments or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionexpansions thereof.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Hess Midstream Partners LP), Revolving Credit Agreement (Hess Midstream Partners LP), Revolving Credit Agreement (Hess Midstream Partners LP)
Fundamental Changes. (a) The Without limiting the restrictions on Business Acquisitions set forth in Section 6.04, the Borrower will not, and will not permit any Restricted Subsidiary Loan Party to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto (in the case of clause (iii) below) no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of Person may merge or consolidate into the Borrower in a transaction in which the Borrower is the surviving corporation, provided, that if such other Person is a Subsidiary Loan Party, it shall have no assets that constitute Collateral, (ii) any Person may merge into or consolidate with a Subsidiary Loan Party in a transaction in which such Subsidiary Loan Party is the surviving entity, (ii) any Guarantor may merge into Person or consolidate with any Person in a transaction in which the surviving entity Person is or becomes a Guarantor; provided that any promptly following such merger or consolidation becomes a Subsidiary Loan Party, (iii) any Subsidiary Loan Party may liquidate or dissolve if such liquidation or dissolution is not materially disadvantageous to the Lenders, provided that at the time of such liquidation or dissolution, no assets of such Subsidiary Loan Party shall be included in the determination of the ABL Borrowing Base Amount or the FILO Borrowing Base Amount, (iv) any Asset Sale of the Equity Interests in any Subsidiary Loan Party that is permitted under Section 6.05 may be effected through a merger, consolidation, liquidation or dissolution of such Subsidiary Loan Party; provided that (A) any such merger involving a Person that is not a Restricted wholly-owned Subsidiary immediately prior to such merger shall not be permitted to engage in such merger unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person 6.04 and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayedB) the Borrower and its Restricted Subsidiaries may change their Fiscal Year the applicable Subsidiary Loan Party shall comply with the provisions of Section 5.11 with respect to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment any Subsidiary acquired pursuant to this Agreement with Section 6.03, to the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionextent applicable.
Appears in 3 contracts
Sources: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp)
Fundamental Changes. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary of may be merged or consolidated with or into any Person and any Subsidiary may be liquidated or dissolved or change its legal form, in each case in order to consummate any Investment otherwise permitted by Section 6.05 or Disposition otherwise permitted by Section 6.11; provided that if a Borrower is a party to any such merger or consolidation transaction, such Borrower shall be the Borrower surviving Person in such merger or consolidation;
(b) any Loan Party may merge into a Loan Party or consolidate with any other Person in a transaction in which such Loan Party is the surviving entity, Person in such merger or consolidation; provided that neither the Company nor any of its Restricted Subsidiaries may merge or consolidate with Holdings pursuant to this paragraph (b) except in connection with a Qualifying IPO in which shares of common stock of the Company are publicly offered;
(c) any Subsidiary that is not a Loan Party may merge or consolidate with (i) any other Subsidiary that is not a Loan Party or (ii) any Guarantor may merge into or consolidate with any Person Loan Party (other than Holdings) in a transaction in which such Loan Party is the surviving entity is Person in such merger or becomes a Guarantorconsolidation; and
(d) the Company may be consolidated with or merged into any Person; provided that any Investment in connection therewith is otherwise permitted by Section 6.05; and provided further that, simultaneously with such transaction, (x) the Person formed by such consolidation or into which the Company is merged shall expressly assume all obligations of the Company under the Loan Documents, (y) the Person formed by such consolidation or into which the Company is merged shall be a corporation, limited liability company or limited partnership organized under the laws of a State in the United States and shall take all actions as may be required to preserve the enforceability of the Loan Documents and validity and perfection of the Liens of the Collateral Documents and (z) 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 involving a Person that is not a Restricted Subsidiary immediately prior to and such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment supplement to this Agreement or any Collateral Document comply with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and the Company shall have delivered to otherwise appropriately update the terms hereof in light of each Lender such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactioninformation as such Lender may have requested to comply with applicable “know your customer” requirements.
Appears in 3 contracts
Sources: Credit Agreement (Dole PLC), Credit Agreement (Dole PLC), Credit Agreement (Dole Food Co Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary of its Subsidiaries to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided that if, except that, if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing: , (i) any Restricted Subsidiary of ▇▇▇▇ Realty OP may merge with and into ▇▇▇▇ Realty OP (it being understood and agreed that in any such event ▇▇▇▇ Realty OP will be the surviving Person), (ii) any Subsidiary of ▇▇▇▇ OP may merge with and into ▇▇▇▇ OP (it being understood and agreed that in any such event ▇▇▇▇ OP will be the surviving Person), (iii) any Subsidiary of ▇▇▇▇ Realty OP or ▇▇▇▇ OP may merge into another Subsidiary of ▇▇▇▇ Realty OP or ▇▇▇▇ OP, respectively, provided that if any party to such merger is a Subsidiary Guarantor or a Poolan Unencumbered Property Owner, the Subsidiary Guarantor or PoolUnencumbered Property Owner, as applicable, shall be the surviving Person, (iv) any Subsidiary of the Borrower may merge into sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower, ▇▇▇▇ Realty OP, ▇▇▇▇ OP, or to a Loan Party in a transaction in which such Loan Party is Subsidiary Guarantor, and (v) the surviving entity, (ii) liquidation or dissolution of any Guarantor may merge into Subsidiary of ▇▇▇▇ Realty OP or consolidate with ▇▇▇▇ OP that does not own any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not assets will be permitted unless also permitted by Section 8.04, (iii) any Restricted so long as such Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is a Guarantor, so long as the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by parties comply with the provisions of Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution2.29(a)).
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than the ownership, operation and development of Medical Assets and businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionthereto.
Appears in 3 contracts
Sources: Term Loan Agreement (Sila Realty Trust, Inc.), Revolving Credit Agreement (Sila Realty Trust, Inc.), Term Loan Agreement (Sila Realty Trust, Inc.)
Fundamental Changes. (a) The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate otherwise Dispose of all or substantially all of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate, divide or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: , (i) any Restricted Subsidiary of the any Borrower may merge into a Loan Party Borrower in a transaction in which such Loan Party a Borrower is the surviving entity, (ii) any Guarantor Loan Party (other than the Company or any Borrower) may merge into or consolidate with any Person other Loan Party in a transaction in which the surviving entity is a Loan Party and (iii) any Subsidiary that is not a Loan Party may liquidate, divide or becomes a Guarantordissolve if the Borrowers determine in good faith that such liquidation, division or dissolution is in the best interests of the Borrowers and is not materially disadvantageous to the Lender; provided that any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04.
(b) The Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, consummate a Division as the Dividing Person, without the prior written consent of the Administrative Agent. Without limiting the foregoing, if any Loan Party that is a limited liability company consummates a Division (iwith or without the prior consent of the Administrative Agent as required above), each Division Successor shall be required to comply with the obligations set forth in Section 5.11 and the other further assurances obligations set forth in the Loan Documents and become a Loan Party under this Agreement and the other Loan Documents.
(c) No Loan Party will, nor will it permit any Subsidiary to, engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower Borrowers and its their Subsidiaries on the Closing Date date hereof and ancillary, complementary or businesses reasonably related or incidental thereto or representing a reasonable expansion thereof or make any material changes to its business model.
(iid) No Loan Party will, nor will it permit any Subsidiary to, change its Fiscal Year fiscal year or any fiscal quarter from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after Effective Date.
(e) No Loan Party will change the Closing Date, from the accounting basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change upon which its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionfinancial statements are prepared.
Appears in 3 contracts
Sources: Credit Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Credit Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.), Credit Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)
Fundamental Changes. (a) The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower that is not a Loan Party may merge into a Loan Party (A) the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity, (iiB) any Guarantor may merge into or consolidate with any Person Loan Party (other than the Borrower) in a transaction in which the surviving entity is a Loan Party or becomes a Guarantor; provided that (C) any such merger or consolidation involving a Person other Subsidiary of the Borrower that is not a Restricted Subsidiary immediately prior Loan Party, (ii) any Loan Party may merge into any other Loan Party in a transaction in which the surviving entity is a Loan Party (provided that, if the Borrower is a party to such merger merger, the Borrower shall not be permitted unless also permitted by Section 8.04the surviving entity), (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders (it being understood that in the case of any liquidation or (y) merge or consolidate with any other Person (other than dissolution of a Subsidiary that is a Loan Party), provided that (1) a Restricted such Subsidiary is shall at or before the surviving Person and (2) any time of such merger liquidation or consolidation involving a Person dissolution transfer all its assets to another Subsidiary that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; Loan Party) and (iv) any Person may be merged or consolidated with or into the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a transaction that constitutes a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is shall be the continuing or surviving corporation and Person, or (y) if a Guarantor Loan Party is a party to such transaction, the continuing or surviving Person shall be a Loan Party (whether as the survivor or by becoming a Loan Party in accordance with Section 5.14); provided that any such Guarantor merger involving a Person that is the surviving Person; and (v) any not a wholly owned Subsidiary immediately prior to such merger shall not be permitted sale or disposition under unless also permitted by Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04.
(b) The Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries Subsidiary to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date date hereof and ancillary, complementary or businesses reasonably related thereto or thereto.
(iic) No Loan Party will, nor will it permit any Subsidiary to, change its Fiscal Year fiscal year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after Effective Date.
(d) No Loan Party will change the Closing Date, from accounting basis upon which its financial statements are prepared.
(e) No Loan Party will change the basis in effect on tax filing elections it has made under the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionCode.
Appears in 3 contracts
Sources: Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.)
Fundamental Changes. (a) The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent 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, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary of (other than the Borrower) or Intermediate Parent may merge with (A) the Borrower; provided that the Borrower may merge into a Loan Party in a transaction in which such shall be the continuing or surviving Person or (B) one or more other Restricted Subsidiaries (other than the Borrower); provided that when any Subsidiary Loan Party is merging or amalgamating with another Restricted Subsidiary either (1) the continuing or surviving entity, Person shall be a Subsidiary Loan Party or (ii2) any Guarantor may merge into if the continuing or consolidate with any surviving Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Subsidiary Loan Party, the acquisition of such Subsidiary Loan Party by such surviving Restricted Subsidiary immediately prior to such merger shall not be is permitted unless also permitted by under Section 8.04, 6.04;
(iiib) any Restricted Subsidiary that is not a Guarantor (other than the Borrower) may (x) liquidate or dissolve if the Borrower Holdings determines in good faith that such liquidation or dissolution action is in the best interests of Holdings, the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders Lenders;
(c) any Restricted Subsidiary (other than the Borrower) may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to 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 must be an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 or (yC) merge to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;
(d) (I) the Borrower may merge, amalgamate or consolidate with any other Person (other than a Loan Party), Person; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (ivA) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is shall be the continuing or surviving corporation and Person or (yB) if a Guarantor is a party to the Person formed by or surviving any such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidationamalgamation or consolidation is not the Borrower (any such Person, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries tothe “Successor Borrower”), (i1) engage to any substantial extent in any business other than businesses the Successor Borrower shall be an entity organized or existing under the laws of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillaryUnited States or any political subdivision thereof, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed2) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Successor Borrower shall have entered into an amendment to this Agreement with expressly assume all the Administrative Agent (which amendment shall not require the consent obligations of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and the other Loan Documents to otherwise appropriately update which the terms hereof Borrower is a party pursuant to a supplement hereto or thereto in light 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, 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 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 change merger, amalgamation or consolidation complies with this Agreement; provided, further, that (x) if such other Person is not a Loan Party prior to giving effect to such merger, amalgamation or consolidation, no Event of Default exists after giving effect to such merger, amalgamation or consolidation and (y) 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 provide any documentation and other information about the Successor Borrower as shall have been reasonably requested in Fiscal Year 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 fiscal periods. For the avoidance of doubtanti-money laundering rules and regulations, nothing in this Section 8.03 shall prohibit the consummation including Title III of the TransactionUSA Patriot Act;
(e) Holdings or any Intermediate Parent may merge, amalgamate or consolidate with any other Person, so long as no Event of Default exists after giving effect to such merger, amalgamation or consolidation; provided that (A) Holdings or Intermediate Parent, as applicable, shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or Intermediate Parent, as applicable, or is a Person into which Holdings or Intermediate Parent, as applicable, has been liquidated (any such Person, the “Successor Holdings”), (1) the Successor Holdings shall expressly assume all the obligations of Holdings or Intermediate Parent, as applicable, under this Agreement and the other Loan Documents to which Holdings or Intermediate Parent, as applicable, is a party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, (2) each Loan Party other than Holdings or Intermediate Parent, as applicable, 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 Agent, that its Guarantee of and grant of any Liens as security for the Secured Obligations shall apply to the Successor Holdings’ obligations under this Agreement, (3) the Successor Holdings shall, immediately following such merger, amalgamation or consolidation, directly or indirectly own all Subsidiaries owned by Holdings or Intermediate Parent, as applicable, immediately prior to such transaction, (4) Holdings or Intermediate Parent, as applicable, shall have delivered to the Administrative Agent a certificate of a Responsible Officer and an opinion of counsel, each stating that such merger, amalgamation or consolidation complies with this Agreement and (5) Holdings may not merge, amalgamate or consolidate with any of their Subsidiaries that are Loan Parties if any Permitted Holdings Debt is then outstanding unless the Interest Coverage Ratio is greater than or equal to 2.0 to 1.0 on a Pro Forma Basis; provided, further, that if the foregoing requirements are satisfied, the Successor Holdings will succeed to, and be substituted for, Holdings or Intermediate Parent, as applicable, under this Agreement and the other Loan Documents; provided, further, that Holdings agrees to provide any documentation and other information about the Successor Holdings as shall have been reasonably requested in writing by any the 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 Title III of the USA Patriot Act;
(f) 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 6.04; provided that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 5.11 and 5.12;
(g) Holdings, the Borrower and the Restricted Subsidiaries may consummate the Transactions (including the Merger);
(h) Holdings and its Subsidiaries may undertake or consummate any IPO Reorganization Transactions and any transaction related thereto or contemplated thereby; and
(i) any Restricted Subsidiary (other than the Borrower) may effect a merger, dissolution, liquidation consolidation or amalgamation to effect a Disposition permitted pursuant to Section 6.05.
Appears in 3 contracts
Sources: Credit Agreement (European Wax Center, Inc.), Incremental Assumption and Amendment (European Wax Center, Inc.), Incremental Assumption and Amendment (European Wax Center, Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve; provided, except that, that if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower or any Subsidiary may merge into with a Loan Party in Person if the Borrower (or such Subsidiary if the Borrower is not a transaction in which party to such Loan Party merger) is the surviving entityPerson, (ii) any Guarantor Subsidiary may merge into or consolidate with another Subsidiary; provided, that if any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior party to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall not be permitted unless also permitted by the surviving Person or the Subsidiary into whom the Subsidiary Loan Party is merged into must expressly assume all obligations under the Subsidiary Guarantee and become a Subsidiary Loan Party (and deliver to the Administrative Agent all appropriate documents, opinions and certificates referenced in Section 8.045.10), (iii) any Restricted Subsidiary may merge into another Person in order to consummate a Permitted Acquisition; provided, that if any party to such merger is not a Guarantor Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person or the Person into whom the Subsidiary Loan Party is merged into must expressly assume all obligations under the Subsidiary Guarantee and become a Subsidiary Loan Party (and deliver to the Administrative Agent all appropriate documents, opinions and certificates referenced in Section 5.10), (iv) any Subsidiary (other than a Subsidiary Loan Party) may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale Subsidiary Loan Party may liquidate or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation dissolve provided that the assets of such Subsidiary Loan Party are transferred or dissolutionliquidated into the Borrower or any other Subsidiary Loan Party.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date date hereof and ancillary, complementary or businesses reasonably related thereto or (ii) change its Fiscal Year from including the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted securitization of receivables by any Permitted Securitization Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction).
Appears in 3 contracts
Sources: Credit Agreement (Harland John H Co), Revolving Credit Agreement (Harland John H Co), Credit Agreement (Harland John H Co)
Fundamental Changes. Merge or consolidate with or into any Person or liquidate, wind-up or dissolve itself, or permit or suffer any liquidation or dissolution or sell all or substantially all of its assets, except that:
(a) The any Subsidiary may merge with (i) any Borrower, provided that such Borrower will notshall be the continuing or surviving corporation, (ii) any one or more Subsidiaries, provided that if such Subsidiary is a Guarantor, such Subsidiary shall be the continuing or surviving corporation, and will (iii) any joint venture, partnership or other Person, so long as such joint venture, partnership and other Person will, as a result of making such merger and all other contemporaneous related transactions, become a Subsidiary and a Guarantor (if the Subsidiary which merged with such joint venture, partnership or other Person was a Guarantor);
(b) any Subsidiary may sell or transfer all or substantially all of its assets (through voluntary liquidation, dissolution or winding up or otherwise), to any Borrower or to another Subsidiary; provided that if, either immediately prior to or after giving effect (on a pro forma basis) to such proposed sale or transfer (i) an Event of Default shall have occurred and be continuing or (ii) the Leverage Ratio (determined on a pro forma basis after giving effect to such transaction) is greater than 2.00 to 1.00, no Guarantor shall make any such sale or transfer to any Subsidiary which is not permit also a Guarantor or does not concurrently therewith become a Guarantor;
(c) any Restricted Subsidiary to, Borrower may merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with itprovided that (i) such Borrower is the surviving corporation, or liquidate or dissolve, except that, if at the time thereof and (ii) immediately after giving effect thereto to such merger or consolidation, no Default or Event of Default shall have occurred and be continuing: ; and
(id) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with or into any other Person (other than or sell all or substantially all of its assets to the extent such transaction is a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person Disposition otherwise permitted under Section 7.04 or an Investment otherwise permitted under Section 7.05 and (2) any immediately after giving effect to such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses no Default or Event of the type conducted by the Borrower Default shall have occurred and its Subsidiaries on the Closing Date be continuing, and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis Borrowers are in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) compliance with the consent provisions of Section 7.11(a) determined on a pro forma basis after giving effect to such transaction. To the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agentextent any Subsidiary is a Guarantor, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent surviving entity of any other Lender) merger permitted hereunder shall execute such documentation as is satisfactory to ensure that Lender to ratify or otherwise assume the obligations under such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionGuaranty.
Appears in 3 contracts
Sources: Credit Agreement (ADESTO TECHNOLOGIES Corp), Credit Agreement (ADESTO TECHNOLOGIES Corp), Credit Agreement (ADESTO TECHNOLOGIES Corp)
Fundamental Changes. (a) The Borrower No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiary Subsidiaries to, amalgamate with, merge into or consolidate with any other Person, or permit any other Person to amalgamate with, merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower Person (other than a Borrower) may merge or amalgamate into a Loan Party Borrower in a transaction in which such Loan Party Borrower is the surviving entitycorporation, (ii) any Guarantor Person (other than a Borrower) may merge or amalgamate into or consolidate with (A) any Person Loan Party in a transaction in which the surviving entity is a Loan Party or becomes (B) any other Restricted Subsidiary in a Guarantortransaction in which the surviving entity is a Restricted Subsidiary; (iii) any Restricted Subsidiary of the Company may transfer its assets to a Loan Party (other than any member of the Cott Mexican Group unless the transferor is also a member of the Cott Mexican Group) (or if such Subsidiary is a Borrower, then to another Borrower) and may then be liquidated or dissolved; (iv) any Borrower may be merged, amalgamated or consolidated with or into another Borrower; provided that (x) if Cott Beverages is a party to any such merger, amalgamation or consolidation, Cott Beverages is the surviving entity and (y) if the Canadian Borrower merges, amalgamates or consolidates with the UK Borrower, the Canadian Borrower is the surviving entity; (v) any wholly-owned Subsidiary of the Company (other than a Borrower) may merge with or into or amalgamate with any Person acquired in connection with a Permitted Acquisition; provided that (x) the Company and its Restricted Subsidiaries shall comply with Section 5.13 and (y) the surviving Person is a wholly-owned Subsidiary; (vi) any Restricted Subsidiary may merge or amalgamate or combine with any Person pursuant to a disposition permitted by Section 6.05; provided that any such merger or consolidation amalgamation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger or amalgamation shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04.
(b) The Borrower will notNo Loan Party will, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionPermitted Businesses.
Appears in 3 contracts
Sources: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person; provided that, subject to Section 7.12 and provided that, after giving effect to any such transaction, no Default or Event of Default shall exist, (a) The GFI may merge or consolidate with any of its Subsidiaries provided that GFI shall be the continuing or surviving corporation, (b) the Foreign Borrower will notmay merge or consolidate with any of its Subsidiaries provided that the Foreign Borrower shall be the continuing or surviving corporation, and will not permit (c) any Restricted Domestic Subsidiary to, of GFI 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, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (i) any Restricted Domestic Subsidiary of the Borrower may merge into GFI provided that if a Loan Party in is a transaction in which such party thereto, a Loan Party is shall be the continuing or surviving entitycorporation, (iid) any Guarantor Foreign Subsidiary may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; other Foreign Subsidiary provided that if a Loan Party is a party thereto, a Loan Party shall be the continuing or surviving corporation, (e) any Foreign Subsidiary may be merged or consolidated with or into any Loan Party provided that such merger Loan Party shall be the continuing or consolidation involving surviving corporation, (f) any Domestic Subsidiary may wind up, liquidate or dissolve itself so long as it transfers all or substantially all of its assets to a Person that is not a Restricted Subsidiary immediately Domestic Loan Party prior to such merger shall not be permitted unless also permitted by Section 8.04wind up, liquidation or dissolution, (iiig) any Restricted Foreign Subsidiary that is not a Guarantor may (x) wind up, liquidate or dissolve itself so long as it transfers all or substantially all of its assets to a Foreign Loan Party prior to such wind up, liquidation or dissolution, (h) any Subsidiary may wind up, liquidate or dissolve itself if the Borrower GFI determines in good faith that such wind up, liquidation or dissolution is in the GFI’s best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than and the assets of such Subsidiary are transferred to a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately Party prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation dissolution and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 8.04 shall prohibit the consummation of the Transactionany Disposition otherwise permitted under Section 8.05.
Appears in 3 contracts
Sources: Credit Agreement (GFI Group Inc.), Credit Agreement (GFI Group Inc.), Credit Agreement (GFI Group Inc.)
Fundamental Changes. (a) The Borrower will notMerge, and will not permit any 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 dissolvethan as part of the Transactions), except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary may merge, amalgamate or consolidate with (i) a Borrower (including a merger, the purpose of the which is to reorganize such Borrower may merge into a Loan Party new jurisdiction in a transaction in which the United States, any state thereof or the District of Columbia); provided that such Loan Party is Borrower shall be the continuing or surviving entity, Person or (ii) any Guarantor may merge into one or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantormore other Restricted Subsidiaries; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) when any Restricted Subsidiary that is not a Guarantor Loan Party is merging, amalgamating or consolidating with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person unless the Investment made in connection with such Restricted Subsidiary that is a Loan Party merging, amalgamating or consolidating with a Non-Loan Party shall otherwise be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(s)) or a Permitted Investment;
(b) any Restricted Subsidiary may (x) liquidate or dissolve or change its legal form if the Administrative Borrower determines in good faith that such liquidation or dissolution action is in the best interests of the Borrower Borrowers and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to a Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (i) the transferee must be a Loan Party or (yii) merge to the extent constituting an Investment, such Investment must be a Restricted Payment permitted by Section 7.06 (other than Section 7.06(s)) or a Permitted Investment;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, the Parent Borrower may merge, dissolve, liquidate or consolidate with any other Person; provided that (i) the Parent Borrower shall be the continuing or surviving corporation or (ii) if the Person formed by or surviving any such merger or consolidation is not the Parent Borrower or is a Person into which the Parent Borrower has been liquidated or dissolved (any such Person, the “Successor Parent Borrower”), (A) the Successor Parent Borrower shall be an entity organized or existing under the Laws of the United States, any state thereof or the District of Columbia, (B) the Successor Parent Borrower shall expressly assume all the obligations of the Parent Borrower under this Agreement and the other Loan Documents to which the Parent Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger, dissolution, liquidation or consolidation, shall have confirmed that its Guarantee shall apply to the Successor Parent Borrower’s obligations under 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, (E) [reserved], and (F) the Administrative Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement 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 if the foregoing are satisfied, the Successor Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement;
(e) [reserved];
(f) so long as no 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 with any other Person in order to effect an Investment permitted pursuant to Section 7.06 (other than Section 7.06(s)) or a Loan Party), Permitted Investment; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation Person shall be a Restricted Subsidiary, which together with each other Restricted Subsidiary, shall have complied with the requirements of Section 6.11;
(g) the Loan Parties and their Subsidiaries may consummate the Merger and the related transactions contemplated by the Merger Agreement (yand documents related thereto) if a Guarantor and any Permitted Reorganization; and
(h) so long as no Event of Default has occurred and is a party to such transactioncontinuing or would result therefrom, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation amalgamation, dissolution, liquidation, consolidation or dissolution.
Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses Section 7.05(e)) may be consummated. Notwithstanding the above, in the case of any merger, amalgamation or consolidation where the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillarycontinuing or surviving Person is a Loan Party or any liquidation into a Loan Party, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or each case, in accordance with respect this Section 7.04, any security interests granted to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) for the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights benefit of the Lenders 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 the Borrower under this Agreement liquidation) and all actions required to otherwise appropriately update the terms hereof maintain said perfected status have been or will promptly be taken, in light of such change in Fiscal Year each case, as required by Sections 6.11 and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction6.13.
Appears in 3 contracts
Sources: Abl Credit Agreement (Option Care Health, Inc.), Abl Credit Agreement (Option Care Health, Inc.), Abl Credit Agreement (Option Care Health, Inc.)
Fundamental Changes. (a) The Except as permitted by Section 11.5 or Section 11.6, neither the Parent nor the Borrower will, nor will not, and will not they permit any Restricted Consolidated 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, except that, if at the time thereof and immediately after giving effect thereto no Default shall have or Event of Default has occurred and be is continuing, or would result after giving effect thereto: (i) any Restricted Consolidated Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party the Borrower so long as the Borrower is the surviving entity, and any Person may merge into or consolidate with a Consolidated Subsidiary in connection with a Permitted Acquisition so long as the surviving entity is a Consolidated Subsidiary and (if any party to such merger or consolidation is a Subsidiary Loan Party) the surviving entity is a Subsidiary Loan Party, (ii) any Guarantor Consolidated Subsidiary may merge into or consolidate with any Person in other Consolidated Subsidiary and, if either such Consolidated Subsidiary is a transaction in which Subsidiary Loan Party, the surviving entity is a Subsidiary Loan Party, (iii) Permitted Acquisitions may be consummated so long as the surviving Person is the Borrower or becomes a Guarantor; Subsidiary Loan Party, (iv) any Consolidated Subsidiary may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it in any sale or other disposition permitted under Section 11.7 (whether or not such Consolidated Subsidiary is the surviving entity), provided that that, any such merger or consolidation involving a Person that is not a Restricted Wholly Owned Subsidiary immediately prior to such merger or consolidation shall not be permitted unless also permitted by Section 8.04Sections 11.5 and 11.9, (iiiv) any Restricted Consolidated Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower or Parent determines in its good faith business judgment that such liquidation or dissolution is in the best interests of the Borrower or Parent and is not materially disadvantageous to the Lenders Lenders, (vi) the Merger may be consummated and (vii) Holdings may merge into or consolidate with the Parent so long as (x) the Parent is the surviving entity and, (y) merge or consolidate with the Parent has pledged 100% of all the Equity Interests of the Cayman Distributor and Wireco WorldGroup Sales (Cayman) Ltd. and any other Person Consolidated Subsidiary to be directly owned by the Parent (other than a Loan Party), provided that any Consolidated Subsidiary organized and/or incorporated under the laws of the European Union or any member state thereof or any other European jurisdiction) (1) a Restricted Subsidiary is after giving effect to the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution).
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 3 contracts
Sources: Loan and Security Agreement (WireCo WorldGroup Poland Holdings Sp. z.o.o.), Loan and Security Agreement (1295728 Alberta ULC), Loan and Security Agreement (1295728 Alberta ULC)
Fundamental Changes. Merge, amalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person; 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 not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (i) any Restricted Subsidiary of the Borrower PRA may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), of its Subsidiaries provided that PRA shall be the continuing or surviving corporation, (1b) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (ivi) the Designated Borrower or any Restricted Subsidiary may merge or consolidate with any other Person in connection with a Permitted Acquisition, of its Foreign Subsidiaries provided that (x) if the Designated Borrower is a party to such transaction, the Borrower is shall be the continuing or surviving corporation and (yii) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale Canadian Borrower may amalgamate or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit consolidate with any of its Restricted Foreign Subsidiaries toprovided that the Canadian Borrower shall be the continuing or surviving corporation, (c) any Loan Party other than a Borrower or a Canadian Guarantor may merge or consolidate with any other Loan Party other than a Borrower or Canadian Guarantor, (d) any Foreign Subsidiary (other than the Designated Borrower, the Canadian Borrower or a Canadian Guarantor) may be merged, amalgamated or consolidated with or into any Loan Party provided that such Loan Party shall be the continuing or surviving corporation, (e) any Foreign Subsidiary may be merged, amalgamated or consolidated with or into any other Foreign Subsidiary; provided, that, (i) engage to any substantial extent if the Designated Borrower is involved in any business other than businesses of such transaction, the type conducted by Designated Borrower must be the Borrower and its Subsidiaries on the Closing Date and ancillarycontinuing or surviving corporation, complementary or reasonably related thereto or (ii) change its Fiscal Year from if the basis Canadian Borrower is involved in effect on such transaction, the Closing Date Canadian Borrower must be the continuing or with respect surviving corporation and (iii) if a Canadian Guarantor is involved in such transaction, another Canadian Guarantor or the Canadian Borrower must be the continuing or surviving corporation, (f) any Loan Party or any Subsidiary may make dispositions of property not prohibited by Section 8.05, (g) any Loan Party or any Subsidiary may enter into any Permitted Acquisition, (h) any immaterial Subsidiary may be dissolved, wound up or liquidated; provided that the assets of such immaterial Subsidiary are transferred to a Restricted Loan Party prior to any such dissolution, wind up or liquidation; provided, that, (i) if the immaterial Subsidiary that was acquired is a Domestic Subsidiary, PRA or formed after a Subsidiary Guarantor must be the Closing Datetransferee and (ii) if the immaterial Subsidiary is a Canadian Guarantor, from the basis in effect on Canadian Borrower or a Canadian Guarantor must be the date such entity became transferee and (i) any Subsidiary may Dispose of all or substantially all of its assets (whether as a Restricted contribution to capital, dividend, upon voluntary liquidation or otherwise) to PRA or to a Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then the transferee must either be PRA or another Loan Party (x) any Restricted Subsidiary may change its fiscal year to conform to other than the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative AgentDesignated Borrower, the Canadian Borrower shall have entered into an amendment to this Agreement with or a Canadian Guarantor) unless the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower transaction is otherwise permitted under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction8.05.
Appears in 3 contracts
Sources: Credit Agreement (Pra Group Inc), Credit Agreement (Pra Group Inc), Credit Agreement (Pra Group Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto thereto, no Event of Default shall have occurred and be continuing: :
(i) any Restricted Subsidiary of the Borrower Person may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity, Person;
(ii) any Guarantor Person may merge into or consolidate with or into any Person Restricted Subsidiary in a transaction in which the surviving entity is or becomes a GuarantorRestricted Subsidiary; provided that (A) if any party to such merger or consolidation involving is a Loan Party the surviving Person that must also be a Loan Party and must succeed to all the obligations of such Loan Party under the Loan Documents or simultaneously with such merger, the continuing or surviving Person shall become a Loan Party and (B) if any party to such merger or consolidation is not a Restricted Subsidiary immediately prior the surviving Person shall also be a Restricted Subsidiary unless designated as an Unrestricted Subsidiary pursuant to the definition of such merger shall not be permitted unless also permitted by Section 8.04, term;
(iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; Lenders;
(iv) the Borrower or any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in connection with a Permitted Acquisition, order to effect an Investment permitted pursuant to Section 6.04; provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if Person shall be a Guarantor is a party Restricted Subsidiary, which shall comply with the applicable requirements of Section 5.11, to such transaction, such Guarantor is the surviving Person; and extent required thereby;
(v) none of the foregoing shall prohibit any Disposition permitted sale or disposition under by Section 8.05 6.05; and
(vi) any Restricted Subsidiary may be effectuated pursuant to effect a merger, consolidationdissolution, liquidation liquidation, consolidation or dissolutionamalgamation to effect a Disposition permitted pursuant to Section 6.05.
(b) The Borrower and the Restricted Subsidiaries, taken as a whole, will notnot fundamentally and substantively alter the character of their business, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to taken as a Restricted Subsidiary that was acquired or formed after the Closing Datewhole, from the basis in effect business conducted by them on the date such entity became a Restricted Subsidiary; provided that (x) Amendment No. 1 Effective Date and other business activities which are extensions thereof or otherwise incidental, complementary, reasonably related or ancillary to any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and foregoing.
(yc) with Notwithstanding the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing foregoing in this Section 8.03 6.03, the Mergers and the other transactions contemplated by the Merger Agreement shall prohibit the consummation of the Transactionbe permitted.
Appears in 3 contracts
Sources: Credit Agreement (Adeia Inc.), Credit Agreement (Adeia Inc.), Credit Agreement (Xperi Holding Corp)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: , (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entitycorporation, (ii) any Guarantor Loan Party (other than the Borrower) may merge into any Loan Party or consolidate with any Person other Subsidiary in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04Loan Party, (iii) any Restricted Subsidiary that is not a Guarantor Loan Party may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), Lenders; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; 8.04 and (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (xi) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation Person and (yii) if a Guarantor Loan Party is a party to such transaction, such Guarantor Loan Party is the surviving Person; and (v) . Notwithstanding the foregoing provisions of this Section 8.03, if after giving effect to any permitted sale or disposition under Section 8.05 of the succeeding transactions, no Default will exist hereunder, any Subsidiary of the Borrower may be effectuated pursuant to a mergermerged or consolidated with or into any other Subsidiary; provided that when any Restricted Subsidiary is merging or consolidating with or into an Unrestricted Subsidiary and the Restricted Subsidiary is not the continuing or surviving Person, consolidation, liquidation or dissolutionthe Borrower shall have complied with the requirements of Section 7.10(e).
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than operations involved in the manufacture, processing and distribution of food, beverage or packaging products or businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or businesses reasonably related thereto or (ii) change its Fiscal Year fiscal year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 2 contracts
Sources: Credit Agreement (Dean Foods Co), Credit Agreement (WHITEWAVE FOODS Co)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Default exists or would result therefrom:
(a) The Borrower will not, and will not permit any Restricted Subsidiary tomay merge with (i) the Borrower, provided that the Borrower shall be the continuing or surviving Person, or (ii) any one or more other Restricted Subsidiaries, provided that when any Wholly Owned Subsidiary is merging with another Restricted Subsidiary, the Wholly Owned Subsidiary shall be the continuing or surviving Person and shall have, to the extent required thereby, complied with the requirements of Section 6.12;
(i) 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 (ii) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower determines in good faith that such action is in the best interests of the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders and shall have, to the extent required thereby, complied with the requirements of Section 6.12;
(c) any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Wholly Owned Subsidiary, then the transferee must either be the Borrower or a Wholly Owned Subsidiary; provided, further that if the transferor in any such a transaction is a Guarantor, then the transferee must either be the Borrower or Guarantor and shall have, to the extent required thereby, complied with the requirements of Section 6.12;
(d) 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;
(e) so long as no Default has occurred and is continuing or would result therefrom, each of the Borrower and any of its Restricted Subsidiaries may merge into or consolidate with any other Person, Person or permit any other Person to merge into or consolidate with it; provided, or liquidate or dissolvehowever, except thatthat in each case, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (i) in the case of any Restricted Subsidiary of such merger to which the Borrower may merge into is a party, the Borrower is the surviving entity and shall have, to the extent required thereby, complied with the requirements of Section 6.12 and (ii) in the case of any such merger to which any Loan Party in (other than the Borrower) is a transaction in which party, such Loan Party is the surviving entityentity and shall have, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders extent required thereby, complied with the requirements of Section 6.12; and
(f) so long as no Default exists or (y) merge or consolidate with any other Person (other than a Loan Party)would result therefrom, provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidationdissolution, liquidation liquidation, consolidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative AgentDisposition, the Borrower shall have entered into an amendment purpose and effect of which is to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) consummate a Disposition permitted pursuant to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction7.06.
Appears in 2 contracts
Sources: Credit Agreement (Targa Resources Corp.), Credit Agreement (Targa Resources Investments Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of related transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at provided that both immediately before and after giving effect thereto, no Event of Default shall or would exist:
(i) the time thereof Borrower may merge or consolidate with any Person, provided that (A) the Borrower shall be the surviving entity thereof, (B) the Borrower shall have satisfied the notice requirements in Section 6.1(e) with respect thereto, and (C) immediately after giving effect thereto no Default thereto, the Loan Parties shall have be in compliance on a pro forma basis with all Financial Covenants as of the most recent fiscal quarter end (assuming, for purposes of the Financial Covenants, that all mergers, acquisitions and dispositions consummated since the first day of such fiscal quarter, had occurred and be continuing: on the first day of such fiscal quarter);
(iii) any Restricted Subsidiary of the Borrower may merge or consolidate with any Subsidiary Guarantor, provided that the Borrower shall be the surviving entity;
(iii) [Reserved];
(A) any Subsidiary may merge or consolidate with or into the Borrower in a Loan Party transaction in which the Borrower is the surviving Person, (B) any Subsidiary Guarantor may merge or consolidate with or into any Subsidiary in a transaction in which a Subsidiary Guarantor is the surviving Person, and (C) any Excluded Subsidiary may merge or consolidate with or into any other Subsidiary (including another Excluded Subsidiary) in a transaction in which such Loan Party other Subsidiary is the surviving entity, Person;
(iiv) any Guarantor Subsidiary may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person, provided that (A) immediately after giving effect thereto, no Default shall or would exist, and (B) either (1)(a) such Subsidiary is the surviving Person, and (b) such merger or consolidation is not prohibited by Section 7.5, or (2)(a) such other Person is the surviving Person, and (b)(i) such merger or consolidation is not prohibited by Section 7.7, or (ii) such merger or consolidation is not prohibited by Section 7.5 and such other than Person shall become a Loan PartySubsidiary Guarantor in accordance with Section 6.11;
(vi) (A) the Borrower may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to any Subsidiary Guarantor, (B) any Subsidiary Guarantor may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to any other Subsidiary Guarantor (upon voluntary liquidation or dissolution or otherwise), and (C) any Excluded Subsidiary may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or any Subsidiary (upon voluntary liquidation or dissolution or otherwise);
(vii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets in a transaction that is not otherwise permitted by this Section 7.3(a), provided that (1) a Restricted Subsidiary such sale, transfer, lease or other disposition is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.047.7; and
(ivviii) any Subsidiary may liquidate, wind up or dissolve so long as (A) the assets of any such Subsidiary that is a Subsidiary Guarantor are transferred to the Borrower or another Subsidiary Guarantor, or (B) the assets of any Restricted such Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if is an Excluded Subsidiary are transferred to the Borrower is or a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionSubsidiary.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries Subsidiary thereof to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its the Subsidiaries on the Closing Date Date, the ownership of the Equity Interests of any Liberty Subsidiary or the Contributed Ventures Assets, and ancillarybusinesses which are now, complementary or which in the future shall have become, reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionreasonable extension thereof.
Appears in 2 contracts
Sources: Credit Agreement (Gci Liberty, Inc.), Credit Agreement (Gci, LLC)
Fundamental Changes. (a) The Holdings and the Borrower will shall not, and will shall not permit any Restricted Subsidiary of their respective Subsidiaries to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the Capital Stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve, except ; provided that, if at the time thereof thereof, and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing: , (i) any Restricted Subsidiary of the Borrower or any Subsidiary may merge into with a Loan Party in Person if the Borrower (or such Subsidiary if the Borrower is not a transaction in which party to such Loan Party merger) is the surviving entityPerson; provided that a Subsidiary Loan Party shall be the surviving Person in a merger between a Subsidiary Loan Party and a Subsidiary that is not a Subsidiary Loan Party, (ii) any Guarantor Subsidiary may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantoranother Subsidiary; provided that if any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior party to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall not be permitted unless also permitted by Section 8.04the surviving Person, (iii) any Restricted Subsidiary that is not may sell, transfer, lease, dissolve into or otherwise dispose of all or substantially all of its assets to the Borrower or to a Guarantor Subsidiary Loan Party and (iv) any Subsidiary (other than a Subsidiary Loan Party) may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party)Lenders; provided, provided that (1) a Restricted Subsidiary is the surviving Person and (2) further, that, any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution7.4.
(b) The Borrower will shall not, nor will it and shall not permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or businesses reasonably related or ancillary thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionreasonable extensions thereof.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Root, Inc.), Term Loan Agreement (Root, Inc.)
Fundamental Changes. (a) The Neither Holdings nor any Borrower will, nor will not, and will not they permit any of their Restricted Subsidiary Subsidiaries (including, without limitation, any Intermediate Holdco) 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, divide, or otherwise dispose of all or substantially all of its properties and assets to any Person or group of Persons (which, for the avoidance of doubt, shall not restrict the change in organizational form), 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 of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with (A) any Borrower so long as such Borrower shall be the continuing or surviving Person (and continues to be organized under the laws of the same jurisdiction), (B) any Restricted Subsidiary that is an Intermediate Holdco so long as the continuing or surviving Person is also an Intermediate Holdco and (C) any other Restricted Subsidiary in a transaction in which the surviving entity is or becomes a Guarantor; provided that Restricted Subsidiary and, if any party to such merger or consolidation involving is a Loan Party, either (x) the continuing or surviving entity is a Loan Party or (y) the acquisition of such Loan Party by such continuing or surviving Person that is not a Restricted Subsidiary immediately prior otherwise permitted under 6.04; provided, that, after giving effect to any such merger shall not be permitted unless also permitted by activities under this Section 8.046.03(a)(i), the Loan Parties are in compliance with the Collateral and Guarantee Requirement in Sections 5.12 and 5.13;
(ii) [reserved];
(iii) any Restricted Subsidiary that is not neither an Intermediate Holdco nor a Guarantor Borrower may (x) liquidate or dissolve if Holdings or the Swiss Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower business of the Restricted Group and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), Lenders; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a wholly owned Restricted Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 8.04; 6.04;
(iv) the Borrower or any Restricted Subsidiary may merge with any other Person engage in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation dissolution or dissolutionliquidation, the purpose of which is to effect an Investment permitted pursuant to Section 6.04 or a disposition permitted pursuant to Section 6.05; and
(v) so long as no Event of Default shall have occurred and be continuing, or would result therefrom, Holdings may merge or consolidate with (or Dispose of all or substantially all of its assets to) any other Person; provided that (A) Holdings shall be the continuing or surviving Person or (B) if (x) the Person formed by or surviving any such merger or consolidation is not Holdings, (y) Holdings is not the Person into which Holdings has been liquidated or (z) in connection with a Disposition of all or substantially all of Holdings’s assets, the Person that is the transferee of such assets is not Holdings (any such Person, a “Successor Holdings”), (1) the Successor Holdings shall be an entity organized or existing under the laws of the Cayman Islands, the Kingdom of the Netherlands, the United States, Luxembourg, Jersey, Ireland or England and Wales or any other jurisdiction reasonably consented to by the Administrative Agent (each a “Specified Jurisdiction”); provided further that if Successor Holdings shall as a result of such merger, consolidation or Disposition pursuant to this clause (B) become an entity organized or existing in any Specified Jurisdiction, then Successor Holdings will still be required to be such a Guarantor and grantor, with such changes to the Collateral and Guarantee Requirement and Guarantee and Security Principles as reasonably agreed between the Borrowers and the Administrative Agent, (2) the Successor Holdings shall expressly assume all the obligations of Holdings under this Agreement and the other Loan Documents to which Holdings is a party pursuant to a supplement, amendment or restatement hereto or thereto in form reasonably satisfactory to the Administrative Agent and (3) if reasonably requested by the Administrative Agent, the Swiss Borrower shall have delivered to the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement, amendment or restatement to this Agreement or any Loan 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 the original Holdings will be released.
(b) The Borrower Borrowers, Holdings and the Restricted Subsidiaries, taken as a whole, will not, nor will it permit any of its Restricted Subsidiaries to, (i) not engage to any substantial material extent in any business other than businesses of the type to be conducted by the Borrower Borrowers, Holdings and its the Restricted Subsidiaries as described in the Form 10 if as a result thereof the business conducted by the Borrowers, Holdings and the Restricted Subsidiaries, taken as a whole, would be substantially different from the business conducted by the Borrowers, Holdings and the Restricted Subsidiaries, taken as a whole, on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Effective Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform businesses reasonably related, incidental or ancillary thereto to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested business conducted by the Administrative AgentBorrowers, Holdings and the Borrower Restricted Subsidiaries, taken as a whole, on the Effective Date or reasonable extensions thereof shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionbe permitted hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Garrett Motion Inc.), Credit Agreement (Garrett Motion Inc.)
Fundamental Changes. (a) The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary or Intermediate Parent 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, 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 of may merge with (A) the Borrower; provided that the Borrower may merge into a Loan Party in a transaction in which such shall be the continuing or surviving Person or (B) one or more other Restricted Subsidiaries; provided that when any Subsidiary Loan Party is merging or amalgamating with another Restricted Subsidiary either (1) the continuing or surviving entityPerson 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 permitted under Section 6.04;
(ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve or change its legal form if the Borrower determines in good faith that such liquidation or dissolution action is in the best interests of Holdings, the Intermediate Parents, the Borrower and the Restricted Subsidiaries and is not materially disadvantageous to the Lenders Lenders;
(iii) any Restricted Subsidiary may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) to 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 must be an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04 or (yC) merge to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for Fair Market Value and any promissory note or other non-cash consideration received in respect thereof is an Investment in a Restricted Subsidiary that is not a Loan Party permitted by Section 6.04;
(iv) the Borrower may merge, amalgamate or consolidate with any other Person; provided that the Borrower shall be the continuing or surviving Person;
(v) Holdings or any Intermediate Parent may merge, amalgamate or consolidate with any other Person (other than a Loan Partythe Borrower), so long as no Event of Default exists after giving effect to such merger, amalgamation or consolidation; provided that (A) Holdings or Intermediate Parent, as applicable, shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, amalgamation or consolidation is not Holdings or Intermediate Parent, as applicable, or is a Person into which Holdings or Intermediate Parent, as applicable, has been liquidated (any such Person, the “Successor Holdings”), (1) the Successor Holdings shall expressly assume all the obligations of Holdings or Intermediate Parent, as applicable, under this Agreement and the other Loan Documents to which Holdings or Intermediate Parent, as applicable, is a Restricted Subsidiary is party pursuant to a supplement hereto or thereto in form and substance reasonably satisfactory to the surviving Person and Administrative Agent, (2) each Loan Party other than Holdings or Intermediate Parent, as applicable, 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 Agent, that its Guarantee of and grant of any Liens as security for the Secured Obligations shall apply to the Successor Holdings’ obligations under this Agreement, (3) the Successor Holdings shall, immediately following such merger, amalgamation or consolidation, directly or indirectly own all Subsidiaries owned by Holdings or Intermediate Parent, as applicable, immediately prior to such transaction, (4) Holdings or Intermediate Parent, as applicable, 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 involving a Person complies with this Agreement and (5) [reserved]; provided further, that is not a Restricted Subsidiary immediately prior to such merger shall not if the foregoing requirements are satisfied, the Successor Holdings will succeed to, and be permitted unless also permitted by Section 8.04substituted for, Holdings or Intermediate Parent, as applicable, under this Agreement and the other Loan Documents; (iv) provided further, that the Borrower or agree to provide any documentation and other information about the Successor Holdings as shall have been reasonably requested in writing by any the 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 Title III of the USA Patriot Act;
(vi) any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in connection with a Permitted Acquisition, order to effect an Investment permitted pursuant to Section 6.04; provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may Person shall be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that , which together with each of the Restricted Subsidiaries, shall have complied with the requirements of Sections 5.11 and 5.12
(xvii) any Restricted Subsidiary may change its fiscal year effect a merger, dissolution, liquidation consolidation or amalgamation to conform effect a Disposition permitted pursuant to the Fiscal Year of the Borrower and Section 6.05; and
(yviii) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction[reserved].
Appears in 2 contracts
Sources: Senior Secured Debtor in Possession Credit Agreement (Cyxtera Technologies, Inc.), First Lien Priority Credit Agreement (Cyxtera Technologies, Inc.)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower Person may merge into a Loan Party or consolidate with the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity, (ii) any Guarantor Person (other than the Borrower) may merge into or consolidate with any Person Subsidiary in a transaction in which the surviving entity is a Subsidiary and, if any party to such merger or becomes consolidation is a GuarantorSubsidiary Loan Party, is a Subsidiary Loan Party, (iii) any Subsidiary may merge into or consolidate with any Person (other than the Borrower) in a transaction permitted under Section 6.05 in which, after giving effect to such transaction, the surviving entity is not a Subsidiary and (iv) any Subsidiary may liquidate or dissolve if in connection with such liquidation or dissolution, substantially all the assets of such Subsidiary are transferred to a Loan Party (to the extent such Subsidiary being liquidated or dissolved is a Subsidiary Loan Party); provided that any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger or consolidation shall not be permitted unless it is also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04.
(b) The Borrower will not, nor and the Borrower will it not permit any of its Restricted Subsidiaries Subsidiary to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower and its the Subsidiaries on the Closing Date date hereof and ancillary, complementary or businesses reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactioncomplementary thereto.
Appears in 2 contracts
Sources: Credit Agreement (Comtech Telecommunications Corp /De/), Credit Agreement (Comtech Telecommunications Corp /De/)
Fundamental Changes. (a) The U.S. Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary of may be merged or consolidated with or into any Person and any Restricted Subsidiary may be liquidated or dissolved or change its legal form, in each case in order to consummate any Investment otherwise permitted by Section 6.05 or Disposition otherwise permitted by Section 6.11; provided that if a Borrower is a party to any such merger or consolidation transaction, such Borrower shall be the Borrower surviving Person in such merger or consolidation;
(b) any Loan Party may merge into a Loan Party or consolidate with any other Person in a transaction in which such Loan Party is the surviving entity, Person in such merger or consolidation;
(iic) any Guarantor Borrower may be consolidated with or merged into an Affiliate incorporated or organized for the purpose of changing the legal domicile of such Borrower, reincorporating such Borrower in another jurisdiction, or changing the legal form of such Borrower; provided that the U.S. Borrower remains organized in the United States and the Dutch Borrower remains organized in the Netherlands; and
(d) any Restricted Subsidiary may merge into or consolidate with a Borrower or any Person other Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary (and, if any party to such merger or becomes consolidation is a GuarantorLoan Party, is a Loan Party); provided that if a Borrower is a party to any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to transaction, such merger Borrower shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any in such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 2 contracts
Sources: Credit Agreement (CONDUENT Inc), Credit Agreement (CONDUENT Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or Dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests of any of its Restricted Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto thereto, no Event of Default shall have occurred and be continuing: :
(i) any Restricted Subsidiary of the Borrower Person may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person Borrower in a transaction in which the Borrower is the surviving entity is Person;
(ii) any Person may merge or becomes consolidate with or into any Restricted Subsidiary in a Guarantortransaction; provided that (A) if any party to such merger or consolidation involving is a Loan Party the surviving Person that must also be a Loan Party and must succeed to all the obligations of such Loan Party under the Loan Documents or simultaneously with such merger, the continuing or surviving Person shall become a Loan Party and (B) if any party to such merger or consolidation is not a Restricted Subsidiary immediately prior the surviving Person shall also be a Restricted Subsidiary unless designated as an Unrestricted Subsidiary pursuant to the definition of such merger shall not be permitted unless also permitted by Section 8.04, term;
(iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; Lenders;
(iv) the Borrower or any Restricted Subsidiary may merge merge, consolidate or amalgamate with any other Person in connection with a Permitted Acquisition, order to effect an Investment permitted pursuant to Section 6.04; provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) Person shall be a Restricted Subsidiary, which shall comply with the applicable requirements of Section 5.11, to the extent required thereby; provided further that if such Restricted Subsidiary was a Guarantor is Loan Party the continuing or surviving Person shall be a party to such transaction, such Guarantor is the surviving Person; and Loan Party;
(v) none of the foregoing shall prohibit any Disposition permitted sale or disposition under by Section 8.05 6.05; and
(vi) any Restricted Subsidiary may be effectuated pursuant to effect a merger, consolidationdissolution, liquidation liquidation, consolidation or dissolutionamalgamation to effect a Disposition permitted pursuant to Section 6.05.
(b) The Borrower and the Restricted Subsidiaries, taken as a whole, will notnot fundamentally and substantively alter the character of their business, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to taken as a Restricted Subsidiary that was acquired or formed after the Closing Datewhole, from the basis in effect business conducted by them on the date such entity became a Restricted Subsidiary; provided that (x) Effective Date and other business activities which are extensions thereof or otherwise incidental, complementary, reasonably related or ancillary to any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionforegoing.
Appears in 2 contracts
Sources: Incremental Amendment (Brooks Automation Inc), Credit Agreement (Brooks Automation Inc)
Fundamental Changes. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all or substantially all of its property or business, except that:
(a) The any Person may be merged or consolidated with or into the Borrower will not(provided that the Borrower shall be the continuing or surviving corporation) or, and will not permit subject to Section 7.12(f), with or into any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at (provided that (w) the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (i) any Restricted Subsidiary shall be the continuing or surviving corporation; (x) if any of the Borrower may merge into involved parties is a Wholly Owned Subsidiary, then the surviving entity shall be a Wholly Owned Subsidiary, (y) if any of the involved parties is a Loan Party, then the surviving entity shall be a Loan Party in and (z) if any of the involved parties is a transaction in which such Loan Party is the surviving entityWholly Owned Subsidiary Guarantor, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which then the surviving entity is or becomes shall be a Wholly Owned Subsidiary Guarantor); provided that any such merger or consolidation involving a Person that is not a Restricted Wholly-Owned Subsidiary of the Borrower immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, 7.7 and any such merger in connection with the Purchase of any Person that is not a Wholly-Owned Subsidiary of the Borrower immediately prior to such merger shall not be permitted unless also permitted by Section 7.7.
(iiib) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve (i) if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (ii) pursuant to any IP Reorganization Transaction;
(i) any Restricted Subsidiary of the Borrower may Dispose of any or all of its assets (x) to the Borrower or any Wholly Owned Subsidiary Guarantor (upon voluntary liquidation or otherwise), (y) merge or consolidate with pursuant to a Disposition permitted by Section 7.5, (ii) any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is of the surviving Person and (2) any such merger or consolidation involving a Person Borrower that is not a Restricted Wholly Owned Subsidiary immediately prior Guarantor may Dispose of any or all of its assets to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation Guarantor and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (xiii) any Restricted Subsidiary may change Dispose of any or all of its fiscal year to conform assets to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other LenderRestricted Subsidiary in any IP Reorganization Transaction; and
(d) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders any Investment expressly permitted by Section 7.7 may be structured as a merger, consolidation or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionamalgamation.
Appears in 2 contracts
Sources: Credit Agreement (Wolverine World Wide Inc /De/), Credit Agreement (Wolverine World Wide Inc /De/)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: that (i) any Restricted Subsidiary of the Borrower Person may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person Borrower in a transaction in which the surviving entity is a Person organized or existing under the laws of the United States of America, any State thereof or the District of Columbia and, if such surviving entity is not the Borrower, such Person expressly assumes, in writing, all the obligations of the Borrower under the Loan Documents, (ii) any Person may merge into any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary and, if any party to such merger is a Subsidiary Loan Party or a Qualified Restricted Subsidiary, is or becomes a Guarantor; provided that any Subsidiary Loan Party and/or Qualified Restricted Subsidiary, as applicable, concurrently with such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04merger, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or Lenders, (yiv) any Restricted Subsidiary that is not a wholly owned Subsidiary may merge or consolidate with any other Person (other than a Loan Party), provided that (1) a such Restricted Subsidiary is repays any Indebtedness owing to any Loan Party prior to or in connection with such merger, (v) any asset sale permitted by Section 6.05(g) may be effected through the surviving Person merger of a subsidiary of the Borrower with a third party and (2vi) any Qualified Restricted Subsidiary may merge with any Person other than a Loan Party in connection with a Permitted Acquisition, provided that any such merger referred to in clauses (i), (ii) or consolidation (iv) above involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04.
(b) The Borrower will not, nor will it not permit any of its Restricted Subsidiaries Subsidiary to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionPermitted Business.
Appears in 2 contracts
Sources: Credit Agreement (Symbion Inc/Tn), Credit Agreement (NeoSpine Surgery, LLC)
Fundamental Changes. (a) The Neither Holdings nor the Borrower will, nor will not, and will not they 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, 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 of (other than the Borrower) may merge with (A) the Borrower; provided that the Borrower may merge into a Loan Party shall be the continuing or surviving Person, or (B) in a transaction in which such the case of any Restricted Subsidiary, any one or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary Loan Party is merging with another Restricted Subsidiary (x) the continuing or surviving entityPerson shall be a Subsidiary Loan Party or (y) 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 6.04;
(ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iiiA) any Restricted Subsidiary that is not a Guarantor Loan Party may merge or consolidate with or into any other Restricted Subsidiary that is not a Loan Party and (xB) any Restricted Subsidiary may liquidate or dissolve or change its legal form if the Borrower Holdings determines in good faith that such liquidation or dissolution action is in the best interests of Holdings, the Borrower and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders Lenders;
(iii) any Restricted Subsidiary (other than an Intermediate Parent or the Borrower) may make a Disposition of all or substantially all of its assets (upon voluntary liquidation or otherwise) 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 must be a permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04 or (yC) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair 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 6.04;
(iv) the Borrower may merge or consolidate with any other Person (other than a Loan Party), Person; provided that (1A) a Restricted Subsidiary is the Borrower shall be the continuing or surviving Person and or (2B) if the Person formed by or surviving any such merger or consolidation involving is not the Borrower (any such Person, the “Successor Borrower”), (w) the Successor Borrower shall be an entity organized or existing under the laws of the United States, any State thereof or the District of Columbia, (x) 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, (y) 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 that is not a Restricted Subsidiary 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 Holdings’ obligations under this 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 (z) Holdings shall not 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 if the foregoing requirements are satisfied, the Successor Holdings will succeed to, and be permitted unless also permitted by Section 8.04substituted for, Holdings under this Agreement and the other Loan Documents; (iv) provided further that the Borrower or agrees to use commercially reasonable efforts to provide any documentation and other information about the Successor Holdings 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
(vi) any Restricted Subsidiary (other than the Borrower) may merge merge, consolidate or amalgamate with any other Person in connection with a Permitted Acquisition, order to effect an Investment permitted pursuant to Section 6.04; provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Sections 5.11 and (y) 5.12 and if a Guarantor is a the other party to such transaction is not a Loan Party, no Default exists after giving effect to such transaction, such Guarantor is the surviving Person; and and
(vvii) any permitted sale or disposition under Section 8.05 Restricted Subsidiary (other than the Borrower) may be effectuated pursuant to effect a merger, consolidationdissolution, liquidation liquidation, consolidation or dissolutionamalgamation to effect a Disposition permitted pursuant to Section 6.05; provided 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, nor and Holdings and the Borrower will it not permit any of its Restricted Subsidiaries Subsidiary to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower and the Restricted Subsidiaries (and KCG and its Subsidiaries subsidiaries) on the Closing Restatement Effective Date and ancillary, complementary or businesses reasonably related thereto or ancillary thereto.
(iic) change its Fiscal Year from Holdings and any Intermediate Parent will not conduct, transact or otherwise engage in any business or operations other than (i) the basis in effect on ownership and/or acquisition of the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year Equity Interests of the Borrower and any Intermediate Parent, (yii) 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 consent of the Administrative Agent (not Loan Documents, any documentation governing any Indebtedness or Guarantee permitted to be unreasonably withheld, conditioned incurred or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested made by the Administrative Agentit under Article 6, the Borrower shall have entered 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 an amendment to this Agreement with or consummate under Article 6 (including, but not limited to, the Administrative Agent (which amendment shall not require the consent making of any other LenderRestricted 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 ensure that such change 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 Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and Section 6.09, (ix) activities incidental to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionTransactions and (x) activities incidental to the businesses or activities described in clauses (i) to (ix) 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 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 existence and business and activities permitted by this Agreement).
(e) Notwithstanding anything to the contrary in this Section 6.03, the Transactions (including the Merger and Contribution) shall be permitted.
Appears in 2 contracts
Sources: Credit Agreement (Virtu Financial, Inc.), Restatement Agreement (Virtu Financial, Inc.)
Fundamental Changes. (a) The Borrower will notMerge, and will not permit any 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 dissolvethan as part of the Transactions), except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary of (other than the Borrower) may merge, amalgamate or consolidate with (i) Parent or the Borrower may merge (including a merger, the purpose of which is to reorganize Parent or the Borrower into a new jurisdiction); provided that in any such merger, amalgamation or consolidation involving Parent, Parent shall be the continuing or surviving Person, and in any such merger, amalgamation or consolidation involving the Borrower, the Borrower shall be the continuing or surviving Person or (ii) one or more other Restricted Subsidiaries (other than the Borrower); provided that when any Person that is a Loan Party in is merging with a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person Restricted Subsidiary that is not a Restricted Subsidiary Loan Party, the Loan Party shall be the continuing or surviving Person or the surviving entity shall substantially concurrently become a Loan Party; 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 shall not merger, consolidation, dissolution or liquidation) and all actions required to maintain said perfected status have been or will promptly be permitted unless also permitted taken, in each case, as required by Section 8.04, Sections 6.11 or 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement;
(iiii) any Restricted Subsidiary that is not a Guarantor Loan Party may merge, amalgamate or consolidate with or into any other Restricted Subsidiary that is not a Loan Party, (xii) any Restricted Subsidiary (other than the Borrower) may liquidate or dissolve if and (iii) any Restricted Subsidiary (other than the Borrower) may change its legal form if, with respect to clauses (ii) and (iii), the Borrower determines in good faith that such liquidation or dissolution action is in the best interests interest of the Borrower Parent and its Restricted Subsidiaries and is not materially disadvantageous to the Lenders (it being understood that in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder);
(c) any Restricted Subsidiary (other than the Borrower) may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to Parent, Holdings or the Borrower or to another Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Subsidiary Guarantor or Parent, Holdings or the Borrower or (yii) to the extent constituting an Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary which is not a Loan Party in accordance with Sections 7.02 (other than Section 7.02(e) or 7.02(h)) and 7.03 (other than Section 7.03(c) and (d)), respectively;
(d) so long as no Event of Default has occurred and is continuing or would result therefrom, Parent or the Borrower may merge or consolidate with any other Person; provided that (i) in any such merger or consolidation involving Parent, Parent shall be the continuing or surviving Person, and in any such merger or consolidation involving the Borrower, the Borrower shall be the continuing or surviving Person; provided, further, that any security interests granted to the Administrative Agent for the benefit of the Secured Parties in the Collateral pursuant to the Collateral Documents shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, consolidation, dissolution or liquidation), the Successor Company shall, to the extent subject to the terms hereof, have complied with the requirements of Section 6.11 and all actions required to maintain said perfected status have been or will promptly be taken as required by Section 6.13 to the extent required pursuant to the Collateral and Guarantee Requirement; or (ii) if the Person formed by or surviving any such merger or consolidation is not Parent or the Borrower (as applicable) (any such Person, the “Successor Company”), (A) the Successor Company shall be an entity organized or existing under the Laws of the United States or any state thereof or the District of Columbia, (B) the Successor Company shall expressly assume all the obligations of Parent or the Borrower (as applicable) under this Agreement and the other Loan Documents to which Parent or the Borrower (as applicable) is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such merger or consolidation, shall have confirmed that its Guaranty shall apply to the Successor Company’s obligations under the Loan Documents, (D) each Guarantor, unless it is the other party to such merger or consolidation, shall have by a supplement to the Security Agreement and other applicable Collateral Documents confirmed that 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 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 Company’s obligations under the Loan Documents, and (F) the Borrower shall have delivered to the Administrative Agent an officer’s certificate stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Company will succeed to, and be substituted for, Parent or the Borrower (as applicable) under this Agreement;
(e) so long as no Event of Default has occurred and is continuing or would result therefrom (in the case of a merger involving a Loan Party), any Restricted Subsidiary (other than the Borrower) may merge or consolidate with any other Person (other than a Loan Party), in order to effect an Investment permitted pursuant to Section 7.02; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may Person shall be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided , which together with each of such surviving Person’s Subsidiaries that (x) any are Restricted Subsidiary may change its fiscal year to conform Subsidiaries, shall have complied with the requirements of Section 6.11 or 6.13 to the Fiscal Year of extent required pursuant to the Borrower Collateral and Guarantee Requirement;
(y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayedf) the Borrower and its the Restricted Subsidiaries may change their Fiscal Year to end on December 31 consummate the Acquisition, related transactions contemplated by the Acquisition Agreement (and documents related thereto) and the Transactions; and
(g) so long asas no Event of Default has occurred and is continuing or would result therefrom, if requested by the Administrative Agenta merger, dissolution, liquidation, consolidation or Disposition, the Borrower shall have entered into an amendment purpose of which is to this Agreement with the Administrative Agent effect a Disposition permitted pursuant to Section 7.05 (which amendment shall not require the consent of any other Lenderthan Section 7.05(e)) or a Restricted Payment permitted pursuant to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction7.06 (other than Section 7.06(d)).
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Global Eagle Entertainment Inc.), Second Lien Credit Agreement (Global Eagle Entertainment Inc.)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate liquidate, wind up or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: , (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity, (ii) subject to Section 6.20, any Guarantor Subsidiary may merge into or consolidate with any Person Subsidiary in a transaction in which the surviving entity is or becomes a Guarantor; provided that wholly-owned Subsidiary and, if any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior party to such merger shall not be permitted unless also permitted by Section 8.04is a Subsidiary Loan Party, a Subsidiary Loan Party, (iii) any Restricted Subsidiary that is not may merge or consolidate with any other Person in order to effect a Guarantor Permitted Acquisition and (iv) any Subsidiary (other than the Borrower) may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), Lenders; provided that (1) a Restricted Subsidiary is the surviving Person and (2x) any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation 6.04 and (y) if any such liquidation or dissolution involving a Guarantor is a party to License Subsidiary of the Borrower shall not be permitted unless such transactionLicense Subsidiary conveys, such Guarantor is the surviving Person; and (v) any permitted sale leases, sells, transfers or disposition under Section 8.05 may be effectuated pursuant otherwise disposes of, in one transaction or series of transactions, all or substantially all of its business or property, whether now or hereafter acquired, to a merger, consolidation, liquidation or dissolutionLicense Subsidiary.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or a Permitted Business.
(iic) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform Notwithstanding anything to the Fiscal Year of contrary contained herein, this Section 6.03 shall not prohibit the Borrower “Restructuring Transactions” under (and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayedas defined in) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionReorganization Plan.
Appears in 2 contracts
Sources: Credit Agreement (Dex Media, Inc.), Credit Agreement (Dex Media, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (awhether in one transaction or in a series of transactions) The 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:
(i) any Subsidiary that is not a Borrower will notmay merge with any Borrower or other Person, provided that when any Borrower is merging with a Subsidiary that is not a Borrower, the Borrower shall be the continuing or surviving Person, or (ii) any Borrower may merge with any other Borrower, provided that when any Borrower is merging with the Principal Borrower, the Principal Borrower shall be the continuing or surviving Person;
(b) any Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another Borrower or as provided in Section 7.05;
(c) any Subsidiary that is not a Borrower (or required to be a Borrower pursuant to the terms hereof) may dispose of all or substantially all its assets and will not permit dissolve or liquidate; and
(d) in connection with any Restricted acquisition permitted under Section 7.03, any Subsidiary to, or any Borrower 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, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: ; provided that (i) any Restricted the Person continuing or surviving a merger with a Subsidiary not then a Borrower shall be a wholly owned Subsidiary of the a Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, and (ii) in the case of any Guarantor such merger to which any Borrower is a party, such Borrower is the continuing or surviving Person; and
(e) so long as no Default has occurred and is continuing or would result therefrom, any Borrower and any of their Subsidiaries may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided, however, that in a transaction each case, immediately after giving effect thereto, in which the surviving entity is or becomes a Guarantor; provided that case of any such merger or consolidation involving to which a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transactionparty, the a Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Personcorporation; and (v) any permitted sale further provided no Borrowing Base Entity may merge into or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) consolidate with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionPrincipal Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Government Properties Income Trust), Credit Agreement (Government Properties Income Trust)
Fundamental Changes. (a) The Borrower Except as permitted by Section 6.04 or Section 6.05, neither the Parent nor the Borrowers will, nor will not, and will not they permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have or Event of Default has occurred and be is continuing, or would result after giving effect thereto: (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party the U.S. Borrower so long as the U.S. Borrower is the surviving entity, and any Person may merge into or consolidate with a Subsidiary in connection with a Permitted Acquisition so long as the surviving entity is a Subsidiary and (if any party to such merger or consolidation is a Subsidiary Loan Party) the surviving entity is a Subsidiary Loan Party, (ii) any Guarantor Subsidiary may merge into or consolidate with any Person in other Subsidiary and, if either such Subsidiary is a transaction in which Subsidiary Loan Party, the surviving entity is a Subsidiary Loan Party, (iii) Permitted Acquisitions may be consummated so long as the surviving Person is a Borrower or becomes a Guarantor; Subsidiary Loan Party, (iv) any Subsidiary may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it in any sale or other disposition permitted under Section 6.06 (whether or not such Subsidiary is the surviving entity), provided that that, any such merger or consolidation involving a Person that is not a Restricted Wholly Owned Subsidiary immediately prior to such merger or consolidation shall not be permitted unless also permitted by Section 8.046.04 and Section 6.08, (iiiv) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower Borrowers or Parent determines in its good faith business judgment that such liquidation or dissolution is in the best interests of the Borrower Borrowers or Parent and is not materially disadvantageous to the Lenders or Lenders, (yvi) the Merger may be consummated and (vii) Holdings may merge into or consolidate with any other Person the Parent so long as (other than a Loan Party), provided that (1x) a Restricted Subsidiary the Parent is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation entity and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any Parent has pledged 100% of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses all the Equity Interests of the type conducted Lux Borrower, the Cayman Distributor and WireCo WorldGroup Sales (Cayman) Ltd. and any other Subsidiary to be directly owned by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or Parent (ii) change its Fiscal Year from the basis in after giving effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned merger or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionconsolidation).
Appears in 2 contracts
Sources: Credit Agreement (1295728 Alberta ULC), Credit Agreement (1295728 Alberta ULC)
Fundamental Changes. (a) The Parent Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing: ;
(ia) any Restricted Subsidiary of the Borrower Person may merge into a Loan Party the Parent Borrower in a transaction in which such Loan Party the Parent Borrower is the surviving entity, corporation;
(iib) any Guarantor Person may merge into or consolidate with any Person in a transaction in which Wholly Owned Subsidiary Guarantor so long as the surviving entity is or becomes a Wholly Owned Subsidiary Guarantor; provided that ;
(c) any Subsidiary may Dispose of its assets to the Parent Borrower or any Wholly Owned Subsidiary Guarantor pursuant to a transaction of liquidation or dissolution;
(d) the Parent Borrower or any Subsidiary may Dispose of any Subsidiary pursuant to a merger of such merger or consolidation involving Subsidiary in a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also Disposition permitted by Section 8.04, 6.6;
(iiie) any Restricted Foreign Subsidiary or other Subsidiary that is not a Subsidiary Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person so long as the surviving entity is a Subsidiary (other than a Loan Party), provided that (1) in the case of a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Foreign Subsidiary Borrower, the surviving entity is a Borrower) or Dispose of its assets to any other Subsidiary pursuant to a transaction of liquidation or dissolution; and
(f) the Parent Borrower may merge or consolidate into any other Person that so long as (i) the surviving entity assumes all the Obligations of the Parent Borrower hereunder and under the other Loan Documents pursuant to a written agreement satisfactory to the Administrative Agent, (ii) the surviving entity is not organized under the laws of a Restricted Subsidiary immediately jurisdiction within the United States of America, (iii) no Default or Event of Default shall have occurred and be continuing, or would occur after giving effect to such merger, (iv) the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to such merger or consolidation, as applicable, with the covenants contained in Section 6.1, in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower for which the relevant information is available as if such merger or consolidation had occurred on the first day of each relevant period for testing such compliance (as demonstrated in a certificate of a Financial Officer delivered to the Administrative Agent at least ten Business Days prior to such merger shall not be permitted unless also permitted by Section 8.04; (ivor consolidation) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale all filings have been made under the Uniform Commercial Code or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent otherwise that are required in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of order for the Administrative Agent (not to be unreasonably withheldcontinue at all times following such merger or consolidation to have a valid, conditioned legal and perfected security interest in all the Collateral to the same extent as prior to such merger or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment consolidation. It is understood that no transaction pursuant to this Agreement with the Administrative Agent (which amendment Section 6.4 shall not require the consent of be permitted unless any other Lender) to ensure that such change Investment or Disposition made in Fiscal Year does not materially adversely affect the rights of the Lenders connection therewith is also expressly permitted by Section 6.5 or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt6.6, nothing in this Section 8.03 shall prohibit the consummation of the Transactionas applicable.
Appears in 2 contracts
Sources: Credit Agreement (SPX Corp), Credit Agreement (SPX Corp)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the assets of the Borrower and its Subsidiaries taken as a whole (whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party any other Person in a transaction in which such Loan Party the Borrower is the surviving entitycorporation, (ii) any Guarantor Subsidiary may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation, (iii) any Subsidiary may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary (and, if Food Lion is a party to such merger, the surviving entity shall agree to be bound by the provisions of the Food Lion Guaranty), (iv) (x) any Subsidiary may merge into any other Person in a transaction in which the surviving entity is a Subsidiary (and, if Food Lion is a party to such merger, the surviving entity shall agree to be bound by the provisions of the Food Lion Guaranty) or becomes (y) any Subsidiary (other than Food Lion) may merge into any other Person in a Guarantor; provided that any such merger or consolidation involving a transaction permitted by Section 6.09 and in which the surviving Person that is not a Restricted Subsidiary, (v) subject to the last sentence of this subsection (a), any Subsidiary immediately prior may sell, transfer, lease or otherwise dispose of its assets to such merger shall the Borrower or to another Subsidiary or in a transaction not be permitted unless also constituting all or substantially all of the assets of the Borrower and its Subsidiaries taken as a whole and which is permitted by Section 8.04, 6.09 and (iiivi) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), Lenders; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 2 contracts
Sources: Credit Agreement (Delhaize America Inc), Credit Agreement (Delhaize America Inc)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, 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) The any Subsidiary may merge with (i) a Loan Party, provided that a Loan Party shall be the continuing or surviving Person (and in any merger involving the Borrower, the Borrower will notshall be the continuing or surviving Person), and will or (ii) any one or more other Subsidiaries which are not permit Loan Parties, provided, that, when any Restricted Wholly Owned Subsidiary tois merging with another Subsidiary, such Wholly Owned Subsidiary shall be the continuing or surviving Person;
(b) in connection with a Permitted Acquisition or other Permitted Investment, any Loan Party or Subsidiary of a Loan Party may merge with or into or consolidate with any other Person, Person or permit any other Person to merge with or into or consolidate with it; provided, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: (i) any Restricted Subsidiary of if such merger or consolidation involves a Loan Party, the Borrower may merge into Person surviving such merger or consolidation shall be a Loan Party (and any merger involving the Borrower, the Borrower shall be the surviving entity in accordance with the provisions of Section 6.12 hereof, and (ii) in the case of any such merger or consolidation to which any Loan Party is a transaction in which party, such Loan Party is the surviving entity, Person; and
(iic) any Guarantor Subsidiary of the Borrower may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower Loan Parties and is not materially disadvantageous or materially adverse to the Lenders Credit Parties. In no event, without the prior written consent of Agent, shall any Loan Party change its jurisdiction of organization (including, without limitation, by merging with or (y) merge or consolidate with into any other Person (other than a Loan Party)entity, provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger reorganizing, dissolving, liquidating, reincorporating or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with incorporating in any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing jurisdiction or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to Section 6.14 hereof ) to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses jurisdiction outside of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionUnited States.
Appears in 2 contracts
Sources: Credit Agreement (Foot Locker, Inc.), Credit Agreement (Foot Locker, Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary other Loan Party to, merge merge, amalgamate into or consolidate with any other Person, or permit any other Person to merge merge, amalgamate into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing: continuing or would arise therefrom, (i) any Restricted Subsidiary of may merge, consolidate or amalgamate into the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the Borrower is the surviving entity corporation, (ii) any Subsidiary that is not the Borrower may merge, consolidate or becomes amalgamate into any Subsidiary that is not the Borrower, (iii) Permitted Acquisitions and asset dispositions permitted pursuant to SECTION 6.05 hereof and Permitted Investments of the type described in clauses (p) and/or (q) of the definition of “Permitted Investment” may be consummated in the form of a Guarantor; merger, consolidation or amalgamation, as long as, in the event of a Permitted Acquisition, the surviving Person is, or as and to the extent required by SECTION 5.12 becomes, a Loan Party, provided that any such merger merger, consolidation or consolidation amalgamation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger merger, consolidation or amalgamation shall not be permitted unless also permitted by Section 8.04SECTION 6.04, (iiiiv) any Restricted Subsidiary that is not a Facility Guarantor may consummate a dissolution or liquidation, the purpose of which is to effect an asset disposition permitted pursuant to SECTION 6.05, and (xv) any Facility Guarantor may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous adverse to the Lenders Lenders. To the extent that any Facility Guarantor is merged, consolidated or (y) merge amalgamated with or consolidate with into any other Loan Party (or any Person in a transaction permitted under clause (other than a Loan Partyiii) above) or liquidated or dissolved, in each case, as permitted under this clause (a), provided that (1) a Restricted Subsidiary is the surviving Person and (2) such Facility Guarantor shall be released from its obligations under any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior Facility Guarantee to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower which it is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionparty.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 2 contracts
Sources: Credit Agreement (Pier 1 Imports Inc/De), Credit Agreement (Pier 1 Imports Inc/De)
Fundamental Changes. (a) The Borrower will notCombine or consolidate with any Person, or liquidate, wind up its affairs or dissolve itself, in each case whether in a single transaction or in a series of related transactions; except, (i) any wholly-owned Subsidiary of any Obligor (other than any Borrower) may merge with and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Personwholly-owned Subsidiary of any Obligor (other than any Borrower), or permit (ii) any other Person to Borrower may merge with and into or consolidate with itany other Borrower and any Guarantor may merge with and into or consolidate with a Borrower or any other Guarantor; provided that in any merger involving a Borrower and a Guarantor, such Borrower shall be the continuing or liquidate surviving Person, (iii) mergers or dissolveconsolidations of any Person with or into Borrower or any Subsidiary if the acquisition of the Equity Interest in such Person by Borrower or such Subsidiary would have been permitted pursuant to Section 10.2.5 (so long as (x) in the case of a merger or consolidation involving a Borrower, except thata Borrower shall be the continuing or surviving Person, (y) if at a Subsidiary is not the time thereof surviving or continuing Person, the surviving Person becomes a Subsidiary and immediately after giving effect thereto complies with the provisions of Section 10.1.9 and there is compliance with all financial covenants in Section 10.3 on a Pro Forma Basis, and (z) no Event of Default shall have occurred and be continuing: continuing after giving effect thereto), (iv) mergers, combinations, or consolidations of any Subsidiary with any Person to consummate a Permitted Asset Disposition with respect to the Equity Interests of such Subsidiary concurrently with such consummation, (v) mergers, combinations, or consolidations of any Subsidiary with any Person to consummate a Permitted Asset Disposition with respect to the Equity Interests of such Subsidiary concurrently with such consummation, or (vi) any CFC or CFC Holding Company that is not an Obligor may merge into any CFC or CFC Holding Company that is not an Obligor, (b) for any Obligor, without providing thirty (30) days’ prior written notice to Agent of the same, change its (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entitytax, charter or other organizational identification number, (ii) any Guarantor may merge into name, or consolidate with any Person in a transaction in which the surviving entity is (iii) form or becomes a Guarantorstate of organization; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger at all times each Obligor shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is maintain its state of organization in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionUnited States.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transaction.
Appears in 2 contracts
Sources: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.), First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any 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, except that, if at the time thereof and immediately after giving effect thereto no Specified Event of Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor Person may merge into or consolidate or amalgamate with any Person the Borrower in a transaction in which the Borrower is the surviving entity is or becomes a Guarantor; provided that corporation, (ii) any such merger or consolidation involving a Person that is not a Restricted Loan Party may merge into or consolidate or amalgamate with any Subsidiary immediately prior in a transaction in which a Subsidiary is the surviving corporation (and if any party to such merger shall not be permitted unless also permitted by Section 8.04merger, consolidation or amalgamation is a Loan Party, becomes a Loan Party), (iii) any Restricted Loan Party (other than the Borrower) may merge into or consolidate or amalgamate with any other Loan Party (other than the Borrower), (iv) any Subsidiary that is not a Guarantor of the Borrower may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and the Subsidiaries, taken as a whole, and is not materially disadvantageous to the Lenders Lenders, (v) any Immaterial Subsidiary may liquidate or dissolve, (yvi) merge Permitted Acquisitions or consolidate with any other Person disposition permitted by Section 6.05 (other than clause (f) thereof) may be consummated in the form of a merger, consolidation or amalgamation, so long as, in the event of a Permitted Acquisition, a Loan Party), provided that (1) a Restricted Subsidiary Party is the surviving Person and (2) or a Person that shall become a Loan Party immediately after such merger, consolidation or amalgamation is the surviving Person; provided that any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; 6.04, and (ivvii) any Subsidiary may merge, amalgamate or consolidate with any other Person (other than the Borrower or any Restricted Subsidiary may merge with any other Person in connection with Subsidiary) the purpose of which is to effect a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any transaction permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionSection 6.05.
(b) The Borrower will not, nor and will it not permit any of its the Restricted Subsidiaries to, (i) to engage to any substantial material extent in any business other than businesses a Related Business (except, in the case of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillarya Special Purpose Receivables Subsidiary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionPermitted Receivables Financings).
Appears in 2 contracts
Sources: Credit Agreement (Eastman Kodak Co), Credit Agreement (Eastman Kodak Co)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the Equity Interests of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, or form any Subsidiary that is not, immediately upon the creation thereof, a Subsidiary Guarantor by joinder to the Guaranty Agreement and the Security Agreement pursuant to documentation acceptable to Administrative Agent, and with its Equity Interests being pledged as part of the Collateral by joinder to the Pledge of Equity Interests of the Obligor owning the Equity Interests of such Subsidiary except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary of the Borrower may merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entitycorporation, (ii) any Guarantor Subsidiary may merge into or consolidate with any Person Subsidiary Guarantor in a transaction in which the surviving entity is or becomes a Subsidiary Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary Guarantor and (xiv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders Lenders, and Administrative Agent is given notice of the intention to effect such liquidation or dissolution not less than ten (y10) merge or consolidate with any other Person (other than a Loan Party), Business Days prior to the commencement thereof; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent execution of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionbusinesses reasonably related thereto.
Appears in 2 contracts
Sources: Credit Agreement (Almost Family Inc), Credit Agreement (Almost Family Inc)
Fundamental Changes. (a) The Borrower will shall not, and will not nor shall it permit any 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 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 dissolvePerson, except that, if at the time thereof and immediately after giving effect thereto so long as no Default shall have occurred and be continuing: exists or would result therefrom:
(a) any Subsidiary may merge or consolidate with (i) the Borrower, provided that the Borrower shall be the continuing or surviving Person or (ii) any Restricted one or more other Subsidiaries, provided, that when any Grantor or Subsidiary Guarantor is merging with another Subsidiary, a Grantor or Subsidiary Guarantor, as applicable, shall be the continuing or surviving Person;
(b) any Subsidiary of the Borrower may merge into a Loan Party Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or another Subsidiary; provided that (i) if the transferor in such a transaction in which such Loan Party is a Grantor or Subsidiary Guarantor, then the surviving entitytransferee must be a Grantor or a Subsidiary Guarantor, as applicable, (ii) if the property subject to such Disposition includes any Guarantor Borrowing Base Asset, then, upon consummation of such Disposition such property shall either continue to qualify as a Borrowing Base Asset or shall have been removed as a Borrowing Base Asset pursuant to a Release Transaction in accordance with the provisions of Section 2.18(c), and (iii) if the property subject to such Disposition includes any Collateral, then, upon consummation of such Disposition such property shall either continue to constitute Collateral or the Borrowing Base Asset constituting or related to such Collateral shall have been removed as a Borrowing Base Asset pursuant to a Release Transaction in accordance with the provisions of Section 2.18(c);
(c) Dispositions that are permitted under Section 7.05, and Investments that are permitted under Section 7.02, shall be permitted under this Section 7.04; provided, that in the case of any Disposition made in connection with a merger or consolidation, such transaction must also be permitted pursuant to Section 7.04(a) or 7.04(d), as applicable; and
(d) Any Subsidiary may merge into or consolidate with any Person that is not a Subsidiary in connection with an Investment permitted under Section 7.02 or a transaction in which the surviving entity is or becomes a GuarantorDisposition permitted under Section 7.05; provided that (i) in the case of a merger or consolidation involving the Borrower, the Borrower shall be the continuing or surviving Person and (ii) in the case of any such merger or consolidation involving a Person that is Grantor or a Subsidiary Guarantor and not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04involving the Borrower, (iii) any Restricted Subsidiary that is not a Guarantor may either (x) liquidate the continuing or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous surviving Person shall cease to the Lenders be a Subsidiary or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and Person must be a Grantor or a Subsidiary Guarantor, as applicable (y) if or become a Guarantor is Grantor or a party to such transactionSubsidiary Guarantor, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a mergeras applicable, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit upon the consummation of the Transaction.thereof)
Appears in 2 contracts
Sources: Credit Agreement (Safety, Income & Growth, Inc.), Credit Agreement (Safety, Income & Growth, Inc.)
Fundamental Changes. (a) The No Borrower (other than the Parent Entity) will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto thereto, no Event of Default shall have occurred and be continuing: , any Borrower (iother than the Parent Entity) may be consolidated with, merged into or liquidated or dissolved into, any Restricted Subsidiary Person; provided that, simultaneously with such transaction, (x) the Person formed by such consolidation or into which such Borrower is merged, liquidated or dissolved shall expressly assume all obligations of such Borrower under the Loan Documents, (y) the Person formed by such consolidation or into which such Borrower is merged, liquidated or dissolved shall be organized under the laws of the jurisdiction of such Borrower may merge into a Loan Party in a transaction in which and (z) such Loan Party is Borrower shall have delivered to the surviving entityAdministrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger, consolidation, liquidation or dissolution and such supplement to this Agreement comply with this Agreement.
(iib) any Guarantor may The Parent Entity will not merge into or consolidate with any other Person, or permit any other Person in a transaction in which to merge into or consolidate with it, or liquidate or dissolve, except that, if at the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary time thereof and immediately prior to such merger after giving effect thereto, no Event of Default shall not have occurred and be permitted unless also permitted by Section 8.04continuing, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate the Parent Entity may be consolidated with, merged into, or dissolve if the Borrower determines in good faith that such liquidation liquidated or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with dissolved into, any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to Permitted Parent Holding Company may be substituted for Parent as the Parent Entity as contemplated by the definition of “Parent Entity”; provided that, simultaneously with such transaction, (x) the Person formed by such consolidation or into which the Parent Entity is merged, liquidated or dissolved or substituted shall expressly assume all obligations of the Parent Entity under the Loan Documents, (y) the Person formed by such consolidation or into which the Parent Entity is merged, liquidated or dissolved or substituted shall be a corporation organized under the laws of a State in the United States of America or a Permitted Foreign Borrower Jurisdiction (or, following a Permitted Parent Borrower Release, a Permitted Parent Guarantor is the surviving Person; Jurisdiction) and (vz) any permitted sale or disposition under Section 8.05 may be effectuated pursuant the Parent Entity shall have delivered to a the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower dissolution or substitution and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment supplement to this Agreement comply with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionAgreement.
Appears in 2 contracts
Sources: Restatement Agreement (Aptiv PLC), Restatement Agreement (Delphi Automotive PLC)
Fundamental Changes. (a) The Neither Holdings nor the Borrower will, nor will not, and will not they permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, consummate a Division as the Dividing Person or otherwise or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: , (i) any Restricted Subsidiary of Person may merge with and into the Borrower may merge into a Loan Party in a transaction in which such Loan Party is the surviving entity, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is a Person organized or existing under the laws of the United States of America, any State thereof or the District of Columbia and, if such surviving entity is not the Borrower, such Person expressly assumes, in writing, all the obligations of the Borrower under the Loan Documents, (ii) any Person may merge with and into any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary and, if any party to such merger is a Subsidiary Loan Party, is or becomes a Guarantor; provided that any Subsidiary Loan Party concurrently with such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04merger, (iii) any Restricted Subsidiary that is not (other than a Guarantor Subsidiary Loan Party) may (x) liquidate or dissolve (whether effected pursuant to a Division or otherwise) if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or Lenders, (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2iv) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also asset sale permitted by Section 8.04; 6.05 or Investment permitted by Section 6.04 may be effected through the merger of a subsidiary of the Borrower with a third party,(v) the Merger shall be permitted and (ivvi) the Borrower or any Restricted Subsidiary may merge with any other consummate a Division as the Dividing Person in connection with a Permitted Acquisitionif, provided that immediately upon the consummation of the Division, (x) the assets of the applicable Dividing Person are held by the Borrower or one or more Restricted Subsidiaries at such time and, if the Borrower Dividing Person is a party to such transaction, the Borrower and is not a Division Successor, (A) one of the continuing Division Successors of the Borrower organized or surviving corporation existing under the laws of the United States of America, any State thereof or the District of Columbia expressly assumes, in writing, all the obligations of the Borrower under the Loan Documents and (B) the Division Successor described in the immediately preceding subclause (A) shall (1) own, directly or indirectly, all of the assets (including, without limitation, any Equity Interests) owned by the Borrower immediately prior to the Division or (2) with respect to any assets not so owned by such Division Successor pursuant to the immediately preceding subclause (1), such Division, shall comply with the immediately succeeding clause (y), or, (y) if a Guarantor is a party with respect to such transactionassets not held by the Borrower or one or more Restricted Subsidiaries, such Guarantor is Division, in the surviving Person; and aggregate, would otherwise be permitted by this Section 6.03 (v) any permitted sale or disposition under without reliance on this subclause (vi)), Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution6.04 and/or Section 6.05.
(b) The Borrower will not, nor and Holdings and the Borrower will it not permit any of its Restricted Subsidiaries Subsidiary to, (i) engage to any substantial material extent in any business other than businesses a Permitted Business.
(c) Holdings will not engage in any business or activity other than the ownership of all the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year outstanding shares of capital stock of the Borrower and engaging in corporate and administrative functions and other activities incidental thereto (y) with the consent including payment of dividends and other amounts in respect of its Equity Interests). Holdings will not own or acquire any assets (other than Equity Interests of the Administrative Agent Borrower and the cash proceeds of any Restricted Payments permitted by Section 6.08 or proceeds of any issuance of Indebtedness or Equity Interests permitted by this Agreement pending application as required by this Agreement) or incur any liabilities (not other than liabilities under and permitted to be unreasonably withheldincurred under the Loan Documents, conditioned the Second Lien Loan Documents and liabilities reasonably incurred in connection with its maintenance of its existence (including the ability to incur fees, costs and expenses relating to such maintenance) and activities incidental thereto). Notwithstanding the foregoing, Holdings shall be permitted to (i) enter into transactions, engage in activities and maintain assets or delayedincur liabilities in respect of Swap Agreements related to Indebtedness of Holdings permitted hereunder, (ii) engage in any public offering of its common stock or any other issuance or sale of its Equity Interests, (iii) participate in tax, accounting and other administrative matters as a member of the consolidated group of Holdings, the Borrower and its Restricted Subsidiaries may change their Fiscal Year Subsidiaries, (iv) hold any cash or property (but not operate any property), (v) provide indemnification to end on December 31 so long as, if requested by officers and directors and (vi) engage in any activities incidental to the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionforegoing.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Select Medical Holdings Corp), First Lien Credit Agreement (Select Medical Corp)
Fundamental Changes. (a) The Borrower No Loan Party will, nor will not, and will not it permit any Restricted Subsidiary of it 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, except that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing: continuing or would arise therefrom, (i) any Restricted Subsidiary of the Borrower may liquidate, dissolve, consolidate, or merge into a Loan Party in a transaction in which such a Loan Party is the surviving entitycorporation, (ii) any Guarantor Subsidiary that is not a Loan Party may liquidate, dissolve, consolidate, or merge into any Subsidiary that is not a Loan Party, (iii) any Loan Party may merge with or into any other Loan Party, and (iv) Permitted Acquisitions and transactions permitted pursuant to SECTION 6.05 may be consummated in the form of a merger or consolidate with any Person consolidation, as long as, in the event of a transaction in which Permitted Acquisition, a Loan Party is the surviving entity is or becomes a Guarantor; Person, provided that any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04SECTION 6.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), further provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger any Borrower shall not be permitted unless also permitted by Section 8.04; (iv) the such Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the another Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) further provided that any such merger or consolidation involving Holdings shall not be permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionunless Holdings is the surviving Person.
(b) The Borrower will notNo Loan Party will, nor will it permit any Subsidiary of its Restricted Subsidiaries it to, (i) engage engage, to any substantial extent material extent, in any business other than businesses of the type conducted by the Borrower and its Subsidiaries such Loan Party or such Subsidiary, as applicable, on the Closing Date date of execution of this Agreement and ancillarybusinesses reasonably related thereto and those supportive, complementary or reasonably related ancillary thereto.
(c) Holdings shall not, nor shall it permit any of its Subsidiaries directly or indirectly owning Capital Stock of the Lead Borrower to, (i) engage or commit to engage in any business or activity other than (A) the ownership of all the outstanding shares of Capital Stock of the Lead Borrower and activities incidental thereto and (B) the ownership of all the outstanding shares of Capital Stock of other entities created or acquired in a transaction otherwise permitted hereunder and activities incidental thereto, (ii) change its Fiscal Year from own or acquire any assets (other than all of the basis outstanding shares of Capital Stock of the Lead Borrower, the cash proceeds of any Restricted Payments permitted by SECTION 6.06 or all of the outstanding shares of Capital Stock of any other entity created or acquired in effect on a transaction otherwise permitted hereunder), or (iii) incur any Indebtedness or other liabilities or financial obligations (other than obligations constituting Permitted Indebtedness under clause (a), (c), (i), (k), (m), (o), (t) or (u) of the Closing Date or definition thereof, or, with respect to a Restricted Subsidiary that was acquired or formed after such types of Permitted Indebtedness, constituting Permitted Indebtedness under clause (w) of the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform definition thereof to the Fiscal Year extent permitted thereunder, nonconsensual obligations imposed by operation of the Borrower law and (y) obligations reasonably incurred in connection with the consent its maintenance of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionexistence).
Appears in 2 contracts
Sources: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)
Fundamental Changes. (a) The Borrower Parent will not, and will not permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if so long as at the time thereof and immediately after giving effect thereto no Default or Event of Default shall have occurred and be continuing: :
(ia) any Restricted Subsidiary of the Borrower Person may merge into a Loan Party the U.S. Borrower in a transaction in which such Loan Party the U.S. Borrower is the surviving entity, Person;
(iib) any Guarantor Person (other than the Parent or the U.S. Borrower) may merge into or consolidate with any Person in a transaction in which Guarantor (other than the Parent or the U.S. Borrower) so long as the surviving entity is or becomes a Guarantor; provided that ;
(c) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior may Dispose of its assets to any Loan Party pursuant to a transaction of liquidation or dissolution;
(d) the Parent or any Restricted Subsidiary may Dispose of any Restricted Subsidiary pursuant to a merger of such merger shall not be permitted unless also Restricted Subsidiary in a Disposition permitted by Section 8.04, 6.6;
(iiie) any Foreign Subsidiary or other Restricted Subsidiary that is not a Guarantor Loan Party: (i) may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is so long as the surviving Person and (2) any such merger or consolidation involving a Person that entity is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted in the case of a merger or consolidation involving a Foreign Subsidiary may change its fiscal year to conform to Borrower, the Fiscal Year of the Borrower and surviving entity is a Borrower; or (y) with may Dispose of its assets to any other Restricted Subsidiary pursuant to a transaction of liquidation or dissolution;
(f) the consent U.S. Borrower may merge or consolidate into any other Person so long as (i) the surviving entity assumes all the Obligations of the Administrative Agent (not U.S. Borrower hereunder and under the other Loan Documents pursuant to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year a written agreement reasonably satisfactory to end on December 31 so long as, if requested by the Administrative Agent, (ii) the Borrower surviving entity is organized under the laws of a jurisdiction within the United States, (iii) no Default or Event of Default shall have entered into an amendment occurred and be continuing, or would occur after giving effect to this Agreement such merger, (iv) the Parent shall be in compliance, on a pro forma basis after giving effect to such merger or consolidation, as applicable, with the covenants contained in Section 6.1, in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent for which the financial statements were (or were required to be) delivered pursuant to Section 5.1(a) or Section 5.1(b) as if such merger or consolidation had occurred on the first day of each relevant period for testing such compliance (as demonstrated in a certificate of a Financial Officer of the Parent delivered to the Administrative Agent at least five Business Days prior to such merger or consolidation), (which amendment v) all filings have been made under the UCC or otherwise that are required in order for the Administrative Agent to continue at all times following such merger or consolidation to have a valid, legal and perfected security interest in all the Collateral to the same extent as prior to such merger or consolidation, and (vi)(A) the surviving entity shall not require have provided to each Agent and each Lender the consent documentation and other information requested by such Agent or such Lender in order to comply with applicable law, including the PATRIOT Act, Sanctions, the United States Foreign Corrupt Practices Act of any other 1977, the applicable European Union or German acts and ordinance such as the German Anti-Money-Laundering-Act (“Geldwäschegesetz”), and the German Foreign Trade Ordinance (Verordnung zur Durchführung des Außenwirtschaftsgesetzes (“Außenwirtschaftsverordnung”)), and (B) if the surviving entity qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Agent and each Lender shall have received, to the extent requested by such Agent or such Lender, a Beneficial Ownership Certification with respect to the surviving entity; and
(g) the Permitted Reorganization may be consummated. It is understood that no transaction pursuant to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 6.4 shall prohibit the consummation of the Transactionbe permitted unless any Investment or Disposition made in connection therewith is also expressly permitted by Section 6.5 or Section 6.6, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (SPX Technologies, Inc.), Credit Agreement (SPX Technologies, Inc.)
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, consummate a Division as the Dividing Person, or otherwise Dispose of (whether in one transaction or in a series of related transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:
(a) The Borrower will not, and will not permit any Restricted Subsidiary toof the Borrower may merge, merge into amalgamate or consolidate with (A) 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 Person or (B) one or more other Restricted Subsidiaries of the Borrower; provided that when any other Person that is a Loan Party is merging with a Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: ;
(i) any Restricted Subsidiary of the Borrower may merge into that is not a Loan Party in may merge, amalgamate or consolidate with or into any other Restricted Subsidiary of the Borrower that is not a transaction in which such Loan Party is the surviving entityParty, (ii) any Guarantor may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, of the Borrower may liquidate or dissolve and (iii) any Restricted Subsidiary that is not a Guarantor of the Borrower may change its legal form if, with respect to clauses (xii) liquidate or dissolve if and (iii), the Borrower determines in good faith that such liquidation or dissolution action is in the best interests interest of the Borrower Consolidated Parties and is if not materially disadvantageous to the Lenders (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);
(c) any Restricted Subsidiary of the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to another such Restricted Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must be a Subsidiary Guarantor or the Borrower or (yii) to the extent constituting an Investment or incurrence of Indebtedness, such Investment must be a permitted Investment in, and such Indebtedness must be permitted Indebtedness of, a Restricted Subsidiary that is not a Loan Party in accordance with Sections 7.02 (other than 7.02(e) or 7.02(h)) and 7.03, respectively;
(d) so long as no Default has occurred and is continuing or would result therefrom, the Borrower may merge, amalgamate or consolidate with any other Person; provided that the Borrower shall be the continuing or surviving corporation (for the avoidance of doubt, the Borrower shall not be permitted to consummate a Division);
(e) so long as (in the case of a merger involving a Loan Party) no 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 of the Borrower may merge or consolidate with any other Person (other than a Loan Party), in order to effect an Investment permitted pursuant to Section 7.02; provided that the continuing or surviving Person shall be (1x) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution.
(b) The Borrower will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) a Domestic Subsidiary, which together with each of their Restricted Subsidiaries, shall have complied with the consent requirements of Section 6.11 and Section 6.13 to the Administrative Agent extent required pursuant to the Collateral and Guarantee Requirement;
(not to be unreasonably withheld, conditioned or delayedf) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long asas no Default has occurred and is continuing or would result therefrom, if requested by the Administrative Agenta merger, dissolution, liquidation, consolidation or Disposition, the Borrower shall have entered into purpose of which is to effect a Disposition permitted pursuant to Section 7.05 (other than Section 7.05(e)); and
(g) any Restricted Subsidiary that is an amendment to this Agreement with LLC may consummate a Division as the Administrative Agent Dividing Person if (which amendment shall not require the consent of any other LenderA) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit immediately upon the consummation of the TransactionDivision, the assets of the applicable Dividing Person are held by one or more Restricted Subsidiaries at such time and (B) if the Subsidiary of the Borrower consummating such Division as a Dividing Person is a Subsidiary Guarantor, then the Division Successor of such Division shall cause the Collateral and Guarantee Requirement to be satisfied with respect to such Division Successor (or to the extent such Division Successor is already a Subsidiary Guarantor it shall continue to be Subsidiary Guarantor after giving effect to such Division); provided that, notwithstanding anything to the contrary in this Agreement, any Subsidiary of the Borrower which is a Division Successor resulting from a Division of assets of a Material Subsidiary may not be deemed to be an Immaterial Subsidiary at the time of or in connection with the applicable Division.
Appears in 2 contracts
Sources: Credit Agreement (Blucora, Inc.), Credit Agreement (Blucora, Inc.)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary Guarantor to, merge into or consolidate with or into any other Person, Person or permit any other Person to merge into or consolidate with or into it, or liquidate or dissolve, except ; provided that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: :
(i) any Restricted Subsidiary of Guarantor may merge or consolidate with or into the Borrower may merge into a Loan Party in a transaction in which such Loan Party so long as the Borrower is the surviving entity, or continuing Person;
(ii) any Subsidiary Guarantor may merge into or consolidate with or into any Person in a transaction in which the surviving entity is or becomes a Guarantorother Subsidiary; provided that a Subsidiary Guarantor shall be the surviving or continuing Person;
(iii) any Disposition not prohibited by this Agreement and any merger or consolidation the purpose of which is to effect a Disposition not prohibited by this Agreement may be consummated;
(iv) any Person (other than the Borrower or a Subsidiary Guarantor) may merge with or into the Borrower or any Subsidiary Guarantor in connection with any acquisition or Investment not prohibited hereunder; provided that (A) if such merger or consolidation involving a involves the Borrower, the Borrower shall be the surviving or continuing Person that is not a Restricted Subsidiary immediately prior to and (B) if such merger or consolidation involves a Subsidiary Guarantor, a Subsidiary Guarantor shall not be permitted unless also permitted by Section 8.04, the surviving or continuing Person;
(iiiv) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve (i) if the Borrower determines in good faith that such liquidation or dissolution is in the best interests interest of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders and (ii) all of the assets of such Subsidiary Guarantor shall be transferred to another Loan Party or otherwise Disposed of in a manner not prohibited by this Agreement prior or after giving effect to such liquidation or dissolution; and
(yvi) merge any Subsidiary of the Borrower or consolidate with any other Person may be merged or consolidated with or into the Borrower; provided that:
(other than a Loan Party), provided that (1A) a Restricted Subsidiary is the Borrower shall be the continuing or surviving Person (and (2the Borrower shall remain an entity organized or existing under the laws of Oklahoma, another State within the United States of America or the District of Columbia) or, if the foregoing is not the case, the Person formed by or surviving any such merger or consolidation involving shall be an entity organized or existing under the laws of Oklahoma, another State within the United States of America or the District of Columbia (the Borrower or such Person, as the case may be, being herein referred to as the “Successor Borrower”);
(B) the Successor Borrower (if other than the Borrower) shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents pursuant to a Person that supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent;
(C) no Default or Event of Default has occurred and is continuing at the date of such merger or consolidation or would result from such consummation of such merger or consolidation;
(D) the Successor Borrower shall be in Pro Forma Financial Covenant Compliance;
(E) if the Successor Borrower is not a Restricted the Borrower (I) each Subsidiary immediately prior Guarantor, unless it is the other party to such merger or consolidation or the Successor Borrower, shall not be permitted have by a supplement to the Subsidiary Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (II) each Subsidiary Guarantor, unless also permitted it is the other party to such merger or consolidation or the Successor Borrower, shall have by Section 8.04; a supplement to the Loan Documents confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this Agreement, (ivIII) the Borrower or Successor Borrower shall have delivered to the Administrative Agent a certificate of an Authorized Officer stating that such merger or consolidation and any Restricted supplements to the Loan Documents preserve the enforceability of the Subsidiary may merge with Guaranty and (IV) if reasonably requested by the Administrative Agent, an opinion of counsel shall be required to be provided to the effect that such merger or consolidation does not violate this Agreement or any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party Loan Document and as to such transactionother matters regarding the Successor Borrower and the Loan Documents as the Administrative Agent or its counsel may reasonably request; and
(F) (I) the Administrative Agent and each Lender shall have received all documentation and other information required by regulatory authorities or as may be required by the internal policies of the Administrative Agent or such Lender with respect to the Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, including the Borrower is the continuing or surviving corporation Patriot Act and (yII) if to the extent the Successor Borrower qualifies as a Guarantor is “legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested, in a party written notice to the Successor Borrower, a Beneficial Ownership Certification in relation to the Successor Borrower shall have received such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolutionBeneficial Ownership Certification.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, Dispose of (iwhether in one transaction or a series of transactions and whether directly or indirectly) engage to any substantial extent in any business other than businesses all or substantially all of the type conducted by assets of the Borrower and its Subsidiaries on (taken as a whole) other than (i) to the Closing Date and ancillary, complementary Borrower or reasonably related thereto a Wholly-Owned Subsidiary or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year sale of the Borrower and Specified Properties (y) with as defined in the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the TransactionPre-Investment Grade Date Agreement).
Appears in 2 contracts
Sources: Credit Agreement (EXPAND ENERGY Corp), Credit Agreement (Chesapeake Energy Corp)
Fundamental Changes. (a) The Borrower will not, and nor will not it permit any 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, 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 merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entity, (ii) any Subsidiary Guarantor may merge into into, or consolidate with with, any Person in other Loan Party, (iii) any Restricted Subsidiary may transfer its assets to a transaction in Loan Party and any Restricted Subsidiary which the surviving entity is or becomes a Guarantornot a Loan Party may transfer its assets to another Restricted Subsidiary; provided that any such merger or consolidation transfer involving a Person that is not a wholly-owned Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.046.04 and Section 6.05, (iiiiv) any Restricted Subsidiary that is not a Guarantor Loan Party may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or Lenders, (yv) any Restricted Subsidiary which is not a Loan Party may merge into, or consolidate with any other Person (other than with, another Restricted Subsidiary which is not a Loan Party), ; provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a wholly-owned Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; 6.04 and Section 6.05, (ivvi) the Borrower or any Restricted Subsidiary that is not a Loan Party may merge into or consolidate with any other Person Loan Party in connection with a Permitted Acquisition, provided that (x) if transaction in which the Borrower surviving entity is a party to such transactionLoan Party, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (vvii) any permitted sale Restricted Subsidiary that is not a Loan Party may merge, consolidate, liquidate or disposition under Section 8.05 dissolve and any Subsidiary Guarantor may be effectuated pursuant merge or consolidate; provided that, with respect to a this clause (vii), (1) in each case, any such merger, consolidation, liquidation or dissolutiondissolution is, or the purpose of which is to effectuate (x) an investment or acquisition otherwise permitted by Section 6.04 or (y) a disposition otherwise permitted by Section 6.05 and (2) with respect to any merger or consolidation of any Subsidiary Guarantor (other than with respect to a disposition permitted by Section 6.05), the surviving entity is a Loan Party, (viii) the Borrower or any of its Restricted Subsidiaries may transfer its assets as part of the Permitted Restructuring Transactions and (ix) the Escrow Borrower may liquidate or dissolve or merge into, or consolidate with, Staples or a Subsidiary following the effectiveness of the Borrower Assumption Agreement on the Acquisition Effective Date.
(b) The Borrower Staples will not, nor will it permit any of its Restricted Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the Borrower Staples and its Restricted Subsidiaries (giving pro forma effect to the Transactions) on the Closing Date and ancillarybusinesses reasonably related, complementary to, or reasonably related incidental thereto or (ii) change its Fiscal Year from including the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year provision of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionservices).
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Staples Inc)
Fundamental Changes. (a) The Borrower Credit Parties will not, and will not permit any Restricted Subsidiary of their 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, except that, if at the time thereof and immediately after giving effect thereto no Unmatured Event of Default or Event of Default shall have occurred and be continuing: , (i) any Restricted Wholly-Owned Subsidiary of the a Borrower may merge into a Loan Party such Borrower in a transaction in which such Loan Party Borrower is the surviving entityPerson, (ii) any Guarantor Wholly-Owned Subsidiary (or any Subsidiary if in connection with a Permitted Acquisition) of a Borrower may merge with or into or consolidate with any Person Subsidiary of such Borrower in a transaction in which the surviving entity is or becomes a GuarantorWholly-Owned Subsidiary of such Borrower; provided, that and if any party to such merger is a Subsidiary Credit Party, the surviving entity shall be a Subsidiary Credit Party, and (iii) the Credit Parties and their Subsidiaries may engage in Permitted Parent Guarantor Transactions and Permitted Cross Chain Transactions; provided that any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04, (iii) any Restricted Subsidiary that is not a Guarantor may (x) liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transactionforegoing, the Borrower is appropriate Credit Parties shall take all actions necessary or reasonably requested by U.S. Collateral Agent or Euro Collateral Agent to maintain the continuing perfection of or surviving corporation perfect, as the case may be, protect and (y) if a Guarantor is a party preserve the Liens on the Collateral granted to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale U.S. Collateral Agent or disposition under Section 8.05 may be effectuated the Euro Collateral Agent pursuant to a mergerthe Security Documents and otherwise comply with the provisions of Section 7.14, consolidation, liquidation or dissolutionon the terms set forth therein and to the extent applicable.
(b) Notwithstanding the foregoing, any Subsidiary of U.S. Borrower, the Canadian Borrower or European Borrower may dispose of any or all of its assets (upon voluntary liquidation or otherwise) to U.S. Borrower, the Canadian Borrower or European Borrower or any Subsidiary Credit Party (provided that, in connection with the foregoing, the appropriate Credit Parties shall take all actions necessary or reasonably requested by the Collateral Agents to maintain the perfection of or perfect, as the case may be, protect and preserve the Liens on the Collateral granted to the Collateral Agents pursuant to the Security Documents and otherwise comply with the provisions of Section 7.14, on the terms set forth therein and to the extent applicable), and any Subsidiary which is not a Subsidiary Credit Party may dispose of assets to any other Subsidiary which is not a Subsidiary Credit Party.
(c) The Borrower Credit Parties will not, nor and will it not permit any of its Restricted their Subsidiaries to, (i) directly or indirectly, engage to any substantial extent in any business other than businesses of the type conducted by the Borrower Crown Holdings and its Subsidiaries on the Closing Effective Date and ancillary, complementary or businesses reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionincidental thereto.
Appears in 2 contracts
Sources: Credit Agreement (Crown Holdings Inc), Credit Agreement (Crown Holdings Inc)
Fundamental Changes. (a) The REIT Guarantor and the Borrower will not, and will not permit any Restricted Subsidiary of their respective Subsidiaries to, merge into or consolidate with into any other Person, or permit any other Person to merge into or consolidate with it, or sell, lease, transfer or otherwise dispose of (in a single transaction or a series of transactions) all or substantially all of its assets (in each case, whether now owned or hereafter acquired) or all or substantially all of the Capital Stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired) or liquidate or dissolve; provided that if, except that, if at the time thereof and immediately after giving effect thereto thereto, no Default or Event of Default shall have occurred and be continuing: exist, (i) any Restricted Subsidiary of the Borrower or any Subsidiary may merge into with a Loan Party in Person if the Borrower (or such Subsidiary if the Borrower is not a transaction in which party to such Loan Party merger) is the surviving entityPerson, provided that if any party to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person, (ii) any Guarantor Subsidiary may merge into or consolidate with any Person in a transaction in which the surviving entity is or becomes a Guarantor; another Subsidiary, provided that if any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior party to such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall not be permitted unless also permitted by Section 8.04the surviving Person, (iii) any Restricted Subsidiary that is not may sell, transfer, lease or otherwise dispose of all or substantially all of its assets to the Borrower or to a Guarantor Subsidiary Loan Party, and (iv) any Subsidiary (other than a Subsidiary Loan Party) may (x) liquidate or dissolve if the Borrower REIT Guarantor determines in good faith that such liquidation or dissolution is in the best interests of the Borrower REIT Guarantor and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party)Lenders; provided, provided further, that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidation, liquidation or dissolution7.4.
(b) The REIT Guarantor and the Borrower will not, nor and will it not permit any of its Restricted their respective Subsidiaries to, (i) engage to any substantial extent in any business other than businesses of the type conducted by the REIT Guarantor, the Borrower and its their respective Subsidiaries on the Closing Date date hereof and ancillary, complementary or businesses reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionthereto.
Appears in 2 contracts
Sources: Credit Agreement (Community Healthcare Trust Inc), Credit Agreement (Community Healthcare Trust Inc)
Fundamental Changes. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, amalgamate with, merge into or consolidate with any other Person, or permit any other Person to amalgamate with, merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) any substantial part of its assets, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing: continuing (i) any Restricted Subsidiary with the consent of the Borrower Administrative Agent not to be unreasonably withheld, any Guarantor may amalgamate with or merge into a Loan Party the Borrower in a transaction in which such Loan Party the Borrower is the surviving entitycorporation, (ii) with the consent of the Administrative Agent not to be unreasonably withheld, any Guarantor may be continued from one form of jurisdiction to another, (iii) any Guarantor may merge into or consolidate with any Person other Guarantor in a transaction in which the surviving entity is or becomes a Guarantor; , provided that any such merger or consolidation involving a Person that is not a Restricted wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.046.04, (iiiiv) any Restricted Person (other than the Borrower or any Guarantor) may amalgamate with or merge into any Subsidiary that (other than a Guarantor) in a transaction in which the surviving entity is not a Guarantor Subsidiary, and (v) any Subsidiary may (x) wind up, liquidate or dissolve if (x) the Borrower determines in good faith that such wind up, liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders or (y) merge or consolidate with any other Person (other than a Loan Party), provided that (1) a Restricted Subsidiary is the surviving Person and (2) any such merger or consolidation involving a Person that is not a Restricted Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 8.04; (iv) the Borrower or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (x) if the Borrower is a party to such transaction, the Borrower is the continuing or surviving corporation and (y) if a Guarantor is a party to in connection with any such transaction, such Guarantor is the surviving Person; and (v) any permitted sale or disposition under Section 8.05 may be effectuated pursuant to a merger, consolidationwind up, liquidation or dissolutiondissolution of a Loan Party, all the assets of such Loan Party are transferred to another Loan Party.
(b) The Borrower will not, nor and will it not permit any of its Restricted Subsidiaries to, (i) engage to any substantial material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the Closing Date and ancillary, complementary or reasonably related thereto or (ii) change its Fiscal Year from the basis in effect on the Closing Date or with respect to a Restricted Subsidiary that was acquired or formed after the Closing Date, from the basis in effect on the date such entity became a Restricted Subsidiary; provided that (x) any Restricted Subsidiary may change its fiscal year to conform to the Fiscal Year of the Borrower and (y) with the consent execution of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed) the Borrower and its Restricted Subsidiaries may change their Fiscal Year to end on December 31 so long as, if requested by the Administrative Agent, the Borrower shall have entered into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to ensure that such change in Fiscal Year does not materially adversely affect the rights of the Lenders or the Borrower under this Agreement and to otherwise appropriately update the terms hereof in light of such change in Fiscal Year and fiscal periods. For the avoidance of doubt, nothing in this Section 8.03 shall prohibit the consummation of the Transactionbusinesses reasonably related thereto.
Appears in 2 contracts
Sources: Credit Agreement (Biovail Corp International), Credit Agreement (Biovail Corp International)