Mergers and Consolidations. Subject to Sections 8.13 and 8.14, the Borrower will not, nor will permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, except, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% and (y) the Total Facility Usage Ratio would not exceed 85% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition of the assets of the Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect to such merger or consolidation, in accordance with Section 7.11, is the Borrower or is or becomes a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and the documents referred to therein and (B) such transaction, if it had been structured as an Acquisition by the Borrower or Subsidiary of the Borrower, would not have been prohibited under Section 8.6.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Borders Group Inc), Senior Secured Credit Agreement (Pershing Square Capital Management, L.P.)
Mergers and Consolidations. Subject Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation (or agree to Sections 8.13 and 8.14, the Borrower will not, nor will permit do any of the foregoing at any future time unless any such agreement is expressly conditioned on the repayment in full of all obligations and the termination of all Commitments hereunder), except that the following shall be permitted:
(a) the Transactions as contemplated by the Transaction Documents;
(b) Asset Sales in compliance with Section 6.06;
(c) acquisitions in compliance with Section 6.07;
(d) any Company may merge or consolidate with or into Borrower or any Guarantor (as long as Borrower is the surviving person in the case of any merger or consolidation involving Borrower and a Guarantor is the surviving person and remains a Wholly Owned Restricted Subsidiary of Borrower in any other case); provided that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.11 or Section 5.12, as applicable; provided, further, that the transaction would not result in the loss, suspension or material impairment of any Gaming License unless a comparable replacement Gaming License is effective prior to or simultaneously with the loss, suspension or material impairment or require any Lender to obtain a Gaming License or be qualified or found suitable under the law of any applicable gaming jurisdiction; provided that such Lender would not have been required to obtain a Gaming License or be qualified or found suitable under the laws of any applicable gaming jurisdiction in the absence of such transaction; and
(e) any Subsidiary may dissolve, liquidate or wind up its Subsidiaries toaffairs at any time; provided that such dissolution, become liquidation or winding up, as applicable, could not reasonably be expected to have a party Material Adverse Effect. To the extent the Required Lenders or all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the sale of any mergerCollateral, amalgamation or consolidationany Collateral is sold as permitted by this Section 6.05, exceptsuch Collateral (unless sold to a Loan Party) shall be sold free and clear of the Liens created by the Security Documents, and, so long as no Default or Event of Default Borrower shall have occurred and be continuing or would result therefrom, (a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the BorrowerAgents such certifications or documents as any Agent shall reasonably request in order to demonstrate compliance with this Section 6.05, a Guarantor the Agents shall take all actions they deem appropriate or reasonably requested by Borrower in order to effect the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% and (y) the Total Facility Usage Ratio would not exceed 85% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition of the assets of the Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect to such merger or consolidation, in accordance with Section 7.11, is the Borrower or is or becomes a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and the documents referred to therein and (B) such transaction, if it had been structured as an Acquisition by the Borrower or Subsidiary of the Borrower, would not have been prohibited under Section 8.6foregoing.
Appears in 2 contracts
Sources: Second Amendment and Restatement Agreement (Jacobs Entertainment Inc), Amendment and Restatement Agreement (Jacobs Entertainment Inc)
Mergers and Consolidations. Subject to Sections 8.13 and 8.14None of Holdings, the Parent Borrower or any other Restricted Subsidiary will wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation (or agree to do any of the foregoing at any future time), except that the following shall be permitted:
(a) acquisitions in compliance with Section 9.22 and asset sales in compliance with Section 9.16;
(b) Holdings, the Parent Borrower or any other Restricted Subsidiary may merge or consolidate with or into a Borrower or any Subsidiary Guarantor (as long as, in the case of any merger or consolidation involving a Borrower, such Borrower is the surviving person and, in any other case, a Subsidiary Guarantor is the surviving person and remains a Wholly-Owned Subsidiary of Holdings ); provided that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Instruments shall be maintained or created in accordance with the provisions of Section 8.05 or Section 8.09, as applicable;
(c) any Restricted Subsidiary (other than a Borrower) may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, would not, nor will permit individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) any Restricted Subsidiary (other than a Borrower) may merge with any other Person in order to effect an Investment permitted pursuant to Section 9.03; provided that the continuing or surviving Person shall be a Restricted Subsidiary and shall have complied with the requirements of its Subsidiaries toSection 8.09; and
(e) any Restricted Subsidiary (other than a Borrower) may consummate any winding-up, become a party to any mergerliquidation, amalgamation dissolution, merger or consolidation, exceptthe purpose of which is to effect an Asset Sale permitted pursuant to Section 9.16. To the extent the Majority Lenders or all the Lenders, as applicable, waive the provisions of this Section 9.08 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.08, such Collateral (unless sold to Holdings, a Borrower or any Domestic Material Restricted Subsidiary) shall be sold free and clear of the Liens created by the Security Instruments, and, so long as no Default or Event of Default the Parent Borrower shall have occurred and be continuing or would result therefrom, (a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% and (y) the Total Facility Usage Ratio would not exceed 85% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition of the assets of the Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect to such merger or consolidation, in accordance with Section 7.11, is the Borrower or is or becomes a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and and/or the Collateral Agent such certifications or documents referred as any such Agent shall reasonably request in order to therein and (B) demonstrate compliance with this Section 9.08, such transaction, if it had been structured as an Acquisition Agents shall take all actions necessary or reasonably requested by the Borrower or Subsidiary of Companies in order to effect the Borrower, would not have been prohibited under Section 8.6foregoing.
Appears in 2 contracts
Sources: Credit Agreement (NPC Restaurant Holdings, LLC), Credit Agreement (NPC Operating Co B, Inc.)
Mergers and Consolidations. Subject to Sections 8.13 and 8.14Wind up, the Borrower will not, nor will permit liquidate or dissolve its affairs or enter into any transaction of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, except, so long as no Default or Event of Default except that the following shall have occurred and be continuing or would result therefrom, permitted:
(a) Asset Sales in compliance with Section 6.05;
(b) Permitted Acquisitions;
(c) any Subsidiary of the Borrower person may consolidate or merge into the Borrower, or consolidate with Borrower in a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary transaction (i) in which Borrower is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) if the Borrower delivers to the Lenders on person formed by or before the date on which surviving any of its Subsidiaries agrees to or consummates such merger or consolidation is not Borrower or is a person into which Borrower has been liquidated (any such consolidation a certificate of person, the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation “Successor Borrower”), (xA) the Total Facility Usage Ratio would not exceed 85% Successor Borrower shall expressly assume all the obligations of Borrower under, and (y) confirm or re-grant all Liens granted by Borrower under, this Agreement and the Total Facility Usage Ratio would not exceed 85% as determined on other Loan Documents pursuant to a pro forma basis over the six month period immediately following the effective date of such merger supplement or such consolidation, joinder hereto or thereto in form and substance reasonably satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the (B) each Loan Party other than Borrower, (iii) unless it is the disposition of the assets of the Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect other party to such merger or consolidation, shall have reaffirmed, pursuant to an agreement in accordance with Section 7.11form and substance reasonably satisfactory to the Administrative Agent, is 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, (C) the Successor Borrower shall, immediately following such merger or is consolidation, directly or becomes indirectly own all Investments in Subsidiaries owned by Borrower immediately prior to such merger or consolidation, (D) the Successor Borrower shall be organized under a Guarantor by executing jurisdiction within the United States; and delivering (E) Borrower shall have delivered to the Administrative Agent a Joinder certificate of a Responsible Officer stating that such merger or consolidation complies with this Agreement; provided that if the foregoing requirements are satisfied, the Successor Borrower will succeed to, and be substituted for, Borrower under this Agreement and the documents referred other Loan Documents;
(d) any person (other than Borrower) may merge into or consolidate with any Restricted Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary (provided that any such merger, consolidation or liquidation involving a Guarantor must result in such surviving entity being or becoming a Guanrantor);
(e) any Restricted Subsidiary may merge into or consolidate with any person in order to therein consummate an Asset Sale made in compliance with Section 6.05 in which the surviving entity is not a Subsidiary;
(f) (x) any Company may merge or consolidate with or into Borrower or any Guarantor (as long as Borrower is the surviving person in the case of any merger or consolidation involving Borrower and a Guarantor is the surviving person and remains a Subsidiary of Borrower in any other case); provided that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.10 or Section 5.11, as applicable, and (By) any Restricted Subsidiary that is not a Guarantor may transfer property or lease to or acquire or lease property from any other Restricted Subsidiary that is not a Guarantor or may be merged into any other Restricted Subsidiary that is not a Guarantor; and
(g) any Restricted Subsidiary may dissolve, liquidate or wind up its affairs at any time; provided that such transactiondissolution, if it had been structured liquidation or winding up, as an Acquisition by the Borrower or Subsidiary of the Borrowerapplicable, would could not reasonably be expected to have been prohibited under Section 8.6a Material Adverse Effect.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Bankrate, Inc.), Revolving Credit Agreement (Bankrate, Inc.)
Mergers and Consolidations. Subject to Sections 8.13 and 8.14, the Borrower It will not, nor and will not permit any of its Subsidiaries Subsidiary to, become a party to any merger, amalgamation directly or consolidation, except, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, indirectly:
(a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate with or merge into any other Subsidiary of the Borrower Person or permit any other Person to consolidate with or merge into it, except that:
(other than a Guarantor) and (ci) any Subsidiary of the Borrower may consolidate with or merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% and (y) the Total Facility Usage Ratio would not exceed 85% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition of the assets of the parent Borrower or a Wholly-Owned Subsidiary if such Subsidiary would have been permitted under Section 8.5.2Borrower or a Wholly-Owned Subsidiary, (iv) as the Paperchase Businessescase may be, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entityPerson and if, immediately after giving effect to such merger transaction, no condition or consolidationevent shall exist which constitutes an Event of Default or a Default; and
(ii) anyentity (other than a Subsidiary) may consolidate with or merge into the Borrower if the Borrower shall be the surviving Person and if, immediately after giving effect to such transaction, 9c) the Borrower (A) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the financial statements of the Borrower most recently delivered pursuant to Section 7.116.03(b), of less than the Consolidated Net Worth of the Borrower immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to the Agent in Connection with such transaction, (B) shall not be liable with respect to any Indebtedness or allow its pro[erty to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement on the date of such transaction, and (C) if such surviving Person is the Operating Partnership, it could incur at least $1 of additional Indebtedness in compliance with Section 8.01(f), (y) substantially all of the assets of the Borrower shall be located, and substantially all of its business shall be conducted, within the continental United States, and (z) no condition or event shall exist which constitutes an Event of Default or Default; and
(iii) it may consolidate with or merge into any other entity if (w) the surviving entity is a corporation or becomes limited partnership organized and existing under the laws of the United States of America or a Guarantor by executing state thereof or the District of Columbia, with substantially all of its properties located and delivering its business conducted within the continental United States, (x) such corporation or limited partnership expressly and unconditionally assumes the obligations of the Borrower under this Agreement, the Security Documents and the MP Loans, and delivers to each holder of a MP Loan at the time outstanding in connection with such assumption an opinion of counsel reasonably satisfactory to the Administrative Agent a Joinder Agreement holders of at least 66 2/3% in aggregate principal amount of the MP Loans then outstanding with respect to such matters incident to such assumption as may be reasonably requested by such holders, including, without limitation, as to the due authorization and execution of the related agreement of assumption and the documents referred enforceability of such agreement against such corporation or partnership, (y) immediately after giving effect to therein such transaction, such corporation or limited partnership (A) shall not have a Consolidated Net Worth, determined in accordance with GAAP applied on a basis consistent with the financial statements of the Operating Partnership most recently delivered pursuant to Section 6.03(b) of less than the Consolidated Net Worth of the Borrower immediately prior to the effectiveness of such transaction, satisfaction of this requirement to be set forth in reasonable detail in an Officers' Certificate delivered to each holder of a Note in connection with such transaction, (B) shall not be liable with respect to any Indebtedness or allow its property to be subject to any Lien which it could not become liable with respect to or allow its property to become subject to under this Agreement on the date of such transaction, (C) if such surviving Person is the Operating Partnership, it could incur at least $1 of additional Indebtedness in compliance with Section 8.01(f), and (z) immediately after giving effect to such transaction no condition or event shall exist which constitutes an Event of Default or a Default; or
(b) sell, lease, abandon or otherwise dispose of all or substantially all of its assets, except that:
(i) any Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets to its parent or to a Wholly-Owned Subsidiary of its parent Borrower; and
(ii) subject to compliance with subsection 8.07(c), any Subsidiary may sell, lease or otherwise dispose of all or substantially all its assets as an entirety for a cash consideration at least equal to the fair value thereof (as determined in good faith by its general partner) at the time of such sale if such Subsidiary does not at the time own (A) any Indebtedness of its parent (other than Indebtedness which, if incurred immediately after such transaction, would be permitted under Section 8.01) or (B) any Indebtedness or stock of or other interest in any other Subsidiary which is not also being simultaneously sold as an entirety in compliance with this clause (b)(ii) and if, at the time of such transaction and immediately after giving effect thereto, the Borrower could incur at least $1 of additional Indebtedness in compliance with Section 8.01(f); and
(iii) it may sell, lease or otherwise dispose of all or substantially all its assets to any corporation or limited partnership into which it could be consolidated or merged in compliance with clause (a)(iii) of this Section 8.07, provided that (A) each of the conditions set forth in such subdivision (a)(iii) shall have been fulfilled, and (B) no such transactiondisposition shall relieve it from its obligations under this Agreement or the MP Loans; or
(c) sell, lease, abandon or otherwise dispose of any of the Mortgaged Properties (except in a transaction permitted by clause (a)(iii) or (b)(iii) of this Section 8.07) unless:
(i) immediately after giving effect to such proposed disposition no condition or event shall exist which constitutes an Event of Default or a Default, and
(ii) one of the following two conditions shall be satisfied:
(A) the aggregate net proceeds of all Mortgaged Properties so disposed of (whether or not leased back) by it and its Subsidiaries during the current fiscal year (including Mortgaged Properties disposed of through dispositions of shares pursuant to Section 8.06 or sales of assets pursuant to Section 8.07(b) and including proceeds deemed to be proceeds of such dispositions pursuant to Section 4(b)(i) of the Trust Agreement), less the amount of all net proceeds of prior sales of Mortgaged Properties previously applied in accordance with clause (ii)(B) of this Section 8.07(c), shall not exceed $5,000,000 during such fiscal year; or
(B) in the event that such net proceeds (less the amount thereof previously applied in accordance with this clause (ii)(B)) during the current fiscal year exceed $5,000,000 (such excess net proceeds actually realized being herein called "Excess Sale Proceeds"), where applicable, it shall promptly pay over to the Trustee under the Trust Agreement such Excess Sale Proceeds for application by the Trustee (x) within 180 days of the disposal of the Mortgaged Properties to the of assets in replacement of the assets so disposed of or of assets which may be productively used in the United States in the conduct of the Business (and such newly acquired assets shall be subjected to the Lien of the Mortgages), or (y) to the extent of Excess Sale Proceeds not applied pursuant to the immediately preceding clause (x), to the prepayment of the MP Loans and the Parity Debt, if it had been structured any, pursuant to Section 7.03, all as provided in Section 4(d) of the Trust Agreement and such Section 7.03 and the Trustee shall have received an Acquisition Officers' Certificate from the general partner of the Operating Partnership certifying that the consideration received for such Mortgaged Properties is at least equal to its fair value (as determined in good faith by the Borrower or Subsidiary Board of Directors) and that such consideration has been applied in accordance with the Borrower, would not have been prohibited under Section 8.6terms of this Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Lakehead Pipe Line Partners L P)
Mergers and Consolidations. Subject to Sections 8.13 and 8.14Section 9.13, none of the Borrower will notBorrowers will, nor will permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, except, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (a) any Borrower (other than BGI) may merge or consolidate into another Borrower, (b) any Subsidiary of the Borrower BGI may consolidate or merge into the any Borrower, a Guarantor or any Wholly-owned Subsidiary of the a Borrower, provided the a Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (bc) any Subsidiary of the Borrower BGI (other than a Borrower or Guarantor) may consolidate or merge into any other Subsidiary of the BGI (other than a Borrower or Guarantor) and (d) any Borrower (other than a GuarantorBGI) and (c) any or Subsidiary of the Borrower BGI may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower BGI delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower Borrowers certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 8590% and (y) the Total Facility Usage Ratio would not exceed 8590% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the BorrowerBorrowers, (iii) the disposition of the assets of the such Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) 9.5.2 and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(Aiv)(A) the surviving entity, immediately after giving effect to such merger or consolidation, in accordance with Section 7.118.14, is the Borrower or is or becomes a Borrower or a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and the documents referred to therein and (B) such transaction, if it had been structured as an Acquisition by the any Borrower or Subsidiary of the BorrowerBGI, would not have been prohibited under Section 8.69.6.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (Borders Group Inc)
Mergers and Consolidations. Subject to Sections 8.13 and 8.14None of Holdings, the Parent Borrower or any other Restricted Subsidiary will wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation (or agree to do any of the foregoing at any future time), except that the following shall be permitted:
(a) acquisitions in compliance with Section 9.22 and asset sales in compliance with Section 9.16;
(b) Holdings, the Parent Borrower or any other Restricted Subsidiary may merge or consolidate with or into a Borrower or any Subsidiary Guarantor (as long as, in the case of any merger or consolidation involving a Borrower, such Borrower is the surviving person and, in any other case, a Subsidiary Guarantor is the surviving person and remains a Wholly-Owned Subsidiary of Holdings ); provided that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Instruments shall be maintained or created in accordance with the provisions of Section 8.05 or Section 8.09, as applicable;
(c) any Restricted Subsidiary (other than a Borrower) may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, would not, nor will permit individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) any Restricted Subsidiary (other than a Borrower) may merge with any other Person in order to effect an Investment permitted pursuant to Section 9.03; provided that the continuing or surviving Person shall be a Restricted Subsidiary and shall have complied with the requirements of its Subsidiaries toSection 8.09; and
(e) any Restricted Subsidiary (other than a Borrower) may consummate any winding-up, become a party to any mergerliquidation, amalgamation dissolution, merger or consolidation, exceptthe purpose of which is to effect an Asset Sale permitted pursuant to Section 9.16.. To the extent the Majority Lenders or all the Lenders, as applicable, waive the provisions of this Section 9.08 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.08, such Collateral (unless sold to Holdings, a Borrower or any Domestic Material Restricted Subsidiary) shall be sold free and clear of the Liens created by the Security Instruments, and, so long as no Default or Event of Default the Parent Borrower shall have occurred and be continuing or would result therefrom, (a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% and (y) the Total Facility Usage Ratio would not exceed 85% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition of the assets of the Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect to such merger or consolidation, in accordance with Section 7.11, is the Borrower or is or becomes a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and and/or the Collateral Agent such certifications or documents referred as any such Agent shall reasonably request in order to therein and (B) demonstrate compliance with this Section 9.08, such transaction, if it had been structured as an Acquisition Agents shall take all actions necessary or reasonably requested by the Borrower or Subsidiary of Companies in order to effect the Borrower, would not have been prohibited under Section 8.6foregoing.
Appears in 1 contract
Mergers and Consolidations. Subject to Sections 8.13 and 8.14Wind up, liquidate or dissolve its affairs or merge or consolidate, except that the Borrower will not, nor will permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, except, so long as no Default or Event of Default following shall have occurred and be continuing or would result therefrom, permitted:
(a) any Subsidiary of the Borrower may consolidate or merge into Transactions as contemplated by the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, Transaction Documents;
(b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and Asset Sales in compliance with Section 6.06;
(c) acquisitions in compliance with Section 6.07;
(d) any Subsidiary of the Borrower Company may merge or consolidate with or into another Person; provided that Borrower or any Subsidiary Guarantor (as long as Borrower is the surviving person in the case of any merger or consolidation involving Borrower and, in any other case, a Subsidiary Guarantor is the surviving person and such Subsidiary Guarantor either (i) no Default remains a Wholly Owned Subsidiary of Borrower or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% and (y) the Total Facility Usage Ratio would not exceed 85% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition of the assets of the Borrower or if such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without Guarantor was not a Wholly Owned Subsidiary of Borrower immediately prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect to such merger or consolidation, each person (other than a Loan Party) that would be a holder of Equity Interests in such Subsidiary Guarantor after giving effect to such merger or consolidation shall have executed and delivered to the Collateral Agent a Minority Holder Acknowledgment, Consent and Waiver prior to the consummation of such merger or consolidation; provided that the Lien on and security interest in the property granted or to be granted in favor of the Collateral Agent or Mortgage Trustee, as applicable, under the Security Documents shall be maintained or created in accordance with the provisions of Section 7.115.11 or Section 5.12, is as applicable;
(e) any Non-Subsidiary Guarantor may merge or consolidate with or into any Non-Subsidiary Guarantor; and
(f) any Subsidiary may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect. To the Borrower extent the Required Lenders or is or becomes a Guarantor by executing and delivering all the Lenders, as applicable, waive the provisions of this Section 6.05 with respect to the Administrative Agent sale or other disposition of any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 6.05, such Collateral (unless sold to a Joinder Agreement Loan Party) shall be sold or disposed of free and clear of the documents referred to therein and (B) such transaction, if it had been structured as an Acquisition Liens created by the Security Documents, and, so long as Borrower shall have provided the Agents such certifications or Subsidiary of documents as any Agent shall reasonably request in order to demonstrate compliance with this Section 6.05, the Borrower, would not have been prohibited under Section 8.6Agents shall take all actions they deem appropriate or that are reasonably requested in order to effect the foregoing.
Appears in 1 contract
Mergers and Consolidations. Subject Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation (or agree to Sections 8.13 and 8.14, the Borrower will not, nor will permit do any of its Subsidiaries tothe foregoing at any time), become a party to any merger, amalgamation or consolidation, except, so long as no Default or Event of Default except that the following shall have occurred and be continuing or would result therefrom, permitted:
(a) any Subsidiary of the Borrower may consolidate or merge into Transactions as contemplated by, and in compliance with, the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, respective Transaction Documents;
(b) any Subsidiary dispositions of the Borrower assets in compliance with Section 6.06 (other than a GuarantorSections 6.06(e), (f) may consolidate or merge into and (g));
(c) Permitted Acquisitions;
(d) any other Subsidiary of the Borrower solvent Restricted Party (other than a Guarantorthe Administrative Borrower) and (c) any Subsidiary of the Borrower may merge or consolidate with or into another Person; provided that any Borrower or Subsidiary Guarantor (so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) in the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% and (y) the Total Facility Usage Ratio would not exceed 85% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to event the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition of the assets of the Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that is a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect party to such merger or consolidation, the Administrative Borrower shall be the surviving person, (ii) in the event that a Borrower other than the Administrative Borrower is a party to such merger or consolidation, a Borrower shall be the surviving person, and (iii) in any other case, a Subsidiary Guarantor shall be the surviving person and shall remain, directly or indirectly, a Wholly Owned Domestic Restricted Subsidiary of the Administrative Borrower); provided, that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 7.115.10 or Section 5.11, as applicable;
(e) any Restricted Subsidiary of the Administrative Borrower that is not a Loan Party may merge into any other Restricted Subsidiary of the Administrative Borrower that is not a Loan Party; and
(f) any Restricted Subsidiary of the Administrative Borrower that is not a Loan Party may dissolve, liquidate or wind up its affairs at any time if such dissolution, liquidation or winding up would not reasonably be expected to be disadvantageous to the Agents and the Lenders in any material respect. To the extent the requisite Lenders under Section 11.02(b) waive the provisions of this Section 6.05 with respect to the sale of any Collateral not otherwise permitted under this Agreement, or any Collateral is or becomes a Guarantor sold as permitted by executing this Section 6.05, such Collateral (unless sold to another Loan Party), but not the proceeds thereof, shall be sold free and delivering clear of the Liens created by the Security Documents, and, so long as the Administrative Borrower shall have previously provided to the Collateral Agent and the Administrative Agent a Joinder Agreement and such certifications or documents as the documents referred Collateral Agent and/or the Administrative Agent shall reasonably request in order to therein and (B) such transactiondemonstrate compliance with this Section 6.05, if the Collateral Agent shall take all actions it had been structured as an Acquisition by deems appropriate in order to effect the Borrower or Subsidiary of the Borrower, would not have been prohibited under Section 8.6foregoing.
Appears in 1 contract
Sources: Abl Credit Agreement (Overseas Shipholding Group Inc)
Mergers and Consolidations. Subject to Sections 8.13 and 8.14In any single transaction or series of transactions, the Borrower will not, nor will permit any of its Subsidiaries to, become directly or indirectly: (a) liquidate or dissolve; (b) be a party to any merger, amalgamation merger or consolidation, except, consolidation unless and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and that is continuing or would result therefromthen continuing, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate immediately thereafter and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% thereto, no event will occur and (y) the Total Facility Usage Ratio would not exceed 85% as determined on be continuing which constitutes a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form Default and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition applicable Obligor (or one of such Obligors if such merger is between Obligors) subject to such merger is the assets surviving Person. Notwithstanding the foregoing, so long as no Event of the Default has occurred which is continuing (or will arise by reason thereof)
(a) any Subsidiary of Borrower may merge with Borrower or any Obligor provided that Borrower or such Obligor is the surviving entity or, so long as such Subsidiary would have been is not an Obligor, with one or more Subsidiaries of Borrower, including without limitation mergers between newly acquired Subsidiaries in connection with any acquisition permitted under Section 8.5.2hereunder, (iv) provided that if any merger is between a wholly-owned Subsidiary of Borrower and a Subsidiary of Borrower which is not a wholly-owned Subsidiary, such wholly-owned Subsidiary of Borrower shall be the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a)surviving entity, (b) and any Subsidiary of Borrower may sell all or substantially all of its assets (upon voluntary liquidation or otherwise) to Borrower or any other Obligor or, so long as such Subsidiary is not an Obligor, to another wholly-owned Subsidiary of Borrower, (c) above (except that any Subsidiary which is not a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall Material Subsidiary may be permitted) liquidated or dissolved, and (v)(Ad) the surviving entitymergers, immediately after giving effect to such merger consolidations or consolidation, in accordance with Section 7.11, is the Borrower or is or becomes a Guarantor dissolutions by executing and delivering to the Administrative Agent a Joinder Agreement and the documents referred to therein and (B) such transaction, if it had been structured as an Acquisition by the Borrower or any Subsidiary of Borrower to change its state of incorporation or to change the Borrower, would form of entity are not have been prohibited under Section 8.6prohibited.
Appears in 1 contract
Mergers and Consolidations. Subject Wind up, liquidate or dissolve its affairs or enter into any transaction of merger, consolidation or amalgamation (or agree to Sections 8.13 do any of the foregoing at any time), except that the following shall be permitted:
(a) the Transactions as contemplated by, and 8.14in compliance with, the Transaction Documents;
(b) Dispositions of assets in compliance with Section 6.06 (other than Section 6.06(e) and Section 6.06(f));
(c) Permitted Acquisitions;
(d) any solvent Company (other than Borrower) may merge, consolidate or amalgamate with or into Borrower will notor any Guarantor (as long as Borrower or a Guarantor is the surviving Person in such merger, nor will permit consolidation or amalgamation and, in the case of any Guarantor, remains a Wholly Owned Subsidiary of Borrower); provided that the Lien on and security interest in such Property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.11 or Section 5.12, as applicable;
(e) any Wholly Owned Subsidiary of Borrower that is not a Guarantor may merge, consolidate or amalgamate with or into any other Wholly Owned Subsidiary of Borrower that is not a Guarantor; and
(f) any Immaterial Subsidiary may dissolve, liquidate or wind up its Subsidiaries toaffairs at any time if such dissolution, become a party liquidation or winding up is not disadvantageous to any mergerAgent or Lender in any material respect. To the extent the requisite Lenders under Section 10.02(b) waive the provisions of this Section 6.05 with respect to the sale of any Collateral, amalgamation or consolidationany Collateral is sold as permitted by this Section 6.05, exceptsuch Collateral (unless sold to a Company or any Affiliate thereof), but not the proceeds thereof, shall be sold free and clear of the Liens created by the Security Documents, and, so long as no Default or Event of Default Borrower shall have occurred and be continuing or would result therefrom, (a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, previously provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate Collateral Agent and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% and (y) the Total Facility Usage Ratio would not exceed 85% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition of the assets of the Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect to such merger or consolidation, in accordance with Section 7.11, is the Borrower or is or becomes a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and such certifications or documents as the documents referred Collateral Agent and/or the Administrative Agent shall reasonably request in order to therein and (B) such transactiondemonstrate compliance with this Section 6.05, if the Collateral Agent shall take all actions it had been structured as an Acquisition by deems appropriate in order to effect the Borrower or Subsidiary of the Borrower, would not have been prohibited under Section 8.6foregoing.
Appears in 1 contract
Mergers and Consolidations. Subject to Sections 8.13 and 8.14, the Borrower The Borrowers will not, nor and will not permit any of its Subsidiaries Subsidiary to, become a party merge into or consolidate with any other Person, or permit any other Person to any mergermerge into or consolidate with it, amalgamation or consolidationliquidate or dissolve, except, so long as 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 or would result therefrom, and:
(ai) any Subsidiary of the Person may merge with or into any Borrower may consolidate or merge into the Borrower, in a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary transaction in which (x) such Borrower is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% and (y) the Total Facility Usage Ratio would not exceed 85% as determined on a pro forma basis over continuing or surviving entity shall have assumed all of the six month period immediately following the effective date obligations of such merger or such consolidation, Borrower hereunder pursuant to an instrument in form and substance satisfactory to the Administrative AgentAgent and shall have delivered such proof of corporate action, based incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by the Borrowers pursuant to Section 4.01 upon the Effective Date or as the Administrative Agent shall have requested and the net worth (determined on reasonable projections a consolidated basis in accordance with GAAP) of the financial performance of the Borrower, (iii) the disposition of the assets of the Borrower continuing or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, entity immediately after giving effect thereto shall be greater than or equal to the net worth (so determined) of such Borrower immediately prior to giving effect thereto;
(ii) any Person (other than a Borrower) may merge with or into any Subsidiary of a Borrower in a transaction in which the surviving entity is a Subsidiary of a Borrower, andprovided that, if any such merger shall be between a Subsidiary Guarantor and a Non-Guarantor Subsidiary, the survivor shall be or consolidation, become a Subsidiary Guarantor;
(iii) any Subsidiary of a Borrower (other than a Borrower) may liquidate or dissolve if the Borrowers determine in accordance with Section 7.11, good faith that such liquidation or dissolution is in the Borrower or best interests of the Borrowers and is or becomes a Guarantor by executing and delivering not materially disadvantageous to the Administrative Agent Lenders.; and
(iv) any Subsidiary (other than a Joinder Agreement and the documents referred Borrower) may merge into any other Person in order to therein and (B) such transaction, if it had been structured as an Acquisition effect a Disposition permitted by the Borrower or Subsidiary of the Borrower, would not have been prohibited under Section 8.6this Agreement.
Appears in 1 contract
Sources: Amendment No. 1 (Sprint Nextel Corp)
Mergers and Consolidations. Subject to Sections 8.13 and 8.14In any single transaction or series of transactions, the Borrower will not, nor will permit any of its Subsidiaries to, become directly or indirectly: (a) liquidate or dissolve; (b) be a party to any merger, amalgamation merger or consolidation, except, consolidation unless and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and that is continuing or would result therefromthen continuing, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate immediately thereafter and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% thereto, no event will occur and (y) the Total Facility Usage Ratio would not exceed 85% as determined on be continuing which constitutes a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form Default and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition applicable Obligor (or one of such Obligors if such merger is between Obligors) subject to such merger is the assets surviving Person. Notwithstanding the foregoing, so long as no Event of the Default has occurred which is continuing (or will arise by reason thereof)
(a) any Subsidiary of Borrower may merge with Borrower or any Obligor provided that Borrower or such Obligor is the surviving entity or, so long as such Subsidiary would have been is not an Obligor, with one or more Subsidiaries of Borrower, including without limitation mergers between newly acquired Subsidiaries in connection with any acquisition permitted under Section 8.5.2hereunder, (iv) provided that if any merger is between a wholly-owned Subsidiary of Borrower and a Subsidiary of Borrower which is not a wholly-owned Subsidiary, such wholly-owned Subsidiary of Borrower shall be the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a)surviving entity, (b) and any Subsidiary of Borrower may sell all or substantially all of its assets (upon voluntary liquidation or otherwise) to Borrower or any other Obligor or, so long as such Subsidiary is not an Obligor, to another wholly-owned Subsidiary of Borrower, (c) above HCC Benefits Corporation, a Delaware corporation, HCC Employer Services, Inc., an Illinois corporation and HCC Employee Benefits, Inc., a Delaware corporation (except that a merger in connection with a Disposition all of the Paperchase Businesses as permitted by Section 8.14(c) shall be permittedwhose operations are being wound down) and (v)(A) the surviving entityany other Subsidiary which is not a Material Subsidiary may be liquidated or dissolved, immediately after giving effect to such merger or consolidation, in accordance with Section 7.11, is the Borrower or is or becomes a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and the documents referred to therein and (Bd) such transactionmergers, if it had been structured as an Acquisition consolidations or dissolutions by the Borrower or any Subsidiary of Borrower to change its state of incorporation or to change the Borrower, would form of entity are not have been prohibited under Section 8.6prohibited.
Appears in 1 contract
Mergers and Consolidations. Subject to Sections 8.13 and 8.14In any single transaction or series of transactions, the Borrower will not, nor will permit any of its Subsidiaries to, become directly or indirectly: (a) liquidate or dissolve; (b) be a party to any merger, amalgamation merger or consolidation, except, consolidation unless and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and that is continuing or would result therefromthen continuing, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate immediately thereafter and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% thereto, no event will occur and (y) the Total Facility Usage Ratio would not exceed 85% as determined on be continuing which constitutes a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form Default and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition applicable Obligor (or one of such Obligors if such merger is between Obligors) subject to such merger is the assets surviving Person. The provisions of this Section are subject to the restrictions set forth in Section 8.12 hereof. Notwithstanding the foregoing, so long as no Event of Default has occurred which is continuing (or will arise by reason thereof)
(a) any Subsidiary of Borrower may merge with Borrower or any Obligor (other than the Second Tier Insurance Company Subsidiaries) provided that Borrower or such Obligor is the surviving entity, or with one or more Subsidiaries of Borrower (other than the Second Tier Insurance Company Subsidiaries), including without limitation mergers between newly acquired Subsidiaries in connection with any acquisition permitted hereunder, provided that if any merger is between a wholly-owned Subsidiary would have been permitted under Section 8.5.2of Borrower and a Subsidiary of Borrower which is not a wholly-owned Subsidiary, (iv) such wholly-owned Subsidiary of Borrower shall be the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a)surviving entity, (b) and any Subsidiary of Borrower may sell all or substantially all of its assets (upon voluntary liquidation or otherwise) to Borrower or any other Obligor (other than the Second Tier Insurance Company Subsidiaries) or, so long as such Subsidiary is not an Obligor, to another wholly-owned Subsidiary of Borrower, (c) above any Subsidiary which is not a Material Subsidiary may be liquidated or dissolved, and (except that a merger in connection with a Disposition d) mergers, consolidations or dissolutions by any Subsidiary of Borrower to change its state of incorporation or to change the form of entity are not prohibited.
(d) Section 8.12 of the Paperchase Businesses Loan Agreement is hereby amended to read in its entirety as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect to such merger or consolidation, in accordance with Section 7.11, is the Borrower or is or becomes a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and the documents referred to therein and (B) such transaction, if it had been structured as an Acquisition by the Borrower or Subsidiary of the Borrower, would not have been prohibited under Section 8.6.follows:
Appears in 1 contract
Mergers and Consolidations. Subject Wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, except that the following shall be permitted:
(a) dispositions of assets in compliance with Section 8.06 (other than Sections 8.06(d), (e) and (f));
(b) Permitted Acquisitions;
(c) any solvent Subsidiary of Holdings (other than the Borrower) may merge or consolidate with or into the Borrower or a Subsidiary Guarantor (so long as (i) in the event the Borrower is a party to Sections 8.13 and 8.14such merger or consolidation, the Borrower will notshall be the surviving person, nor will permit and (ii) in any other case, a Subsidiary Guarantor shall be the surviving person and shall remain, directly or indirectly, a Wholly-Owned Subsidiary of the Borrower); provided, that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 7.10;
(d) any Subsidiary of Holdings that is not a Credit Party may merge into any other Subsidiary of Holdings that is not a Credit Party;
(e) any Subsidiary of Holdings that is not a Credit Party may dissolve, liquidate or wind up its Subsidiaries toaffairs at any time if such dissolution, become liquidation or winding up would not reasonably be expected to be disadvantageous to the Agents and the Lenders in any material respect; and
(f) any Redomiciliation shall be permitted; provided that (i) the Borrower shall have delivered to the Administrative Agent a party notice (the “Redomiciliation Notice”) no less than thirty (30) days (or such shorter period as the Administrative Agent may reasonably agree) prior to any mergerthe consummation of the proposed Redomiciliation, amalgamation or consolidation, except, so long as (ii) no Default or Event of Default shall have occurred and or be continuing or would result therefrom, (a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) both immediately before and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation Redomiciliation, (xiii) the Total Facility Usage Ratio would not exceed 85% Borrower shall have delivered to the Collateral Agent, a supplement to Annex A, Annex B, Annex C, Annex D and/or Annex E to the Pledge Agreement, as applicable, and Schedule I to the General Assignment Agreement which shall correct all information contained therein after giving effect to such Redomiciliation, (yiv) the Total Facility Usage Ratio would not exceed 85% Credit Parties shall have taken all action reasonably requested by the Collateral Agent to maintain the security interests of the Collateral Agent in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect (to at least the same extent as determined on a pro forma basis over in effect immediately prior to such Redomiciliation) and shall be in compliance with the six month period immediately following Collateral and Guaranty Requirements, (v) the effective date of such merger or such consolidationBorrower shall have delivered to the Administrative Agent, customary legal opinions, reasonably satisfactory in form form, scope and substance to the Administrative Agent, of one or more counsel reasonably satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition of the assets of the Borrower or addressing such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that a merger matters in connection with a Disposition the Redomiciliation as the Administrative Agent or any Lender may reasonably request, (vi) the Administrative Agent is satisfied that the rights and remedies of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) Lenders under the Credit Documents are not impaired in any material respect (including the ability to enforce such rights and remedies thereunder and the value of any claims under the Subsidiaries Guaranty), and (v)(Avii) the surviving entity, immediately after giving effect Borrower shall have delivery to any Lender such merger documentation or consolidation, information as may be requested by such Lender in accordance with Section 7.1111.20 in connection with such Redomiciliation. To the extent the requisite Lenders under Section 11.12(b) waive the provisions of this Section 8.05 with respect to the sale of any Collateral not otherwise permitted under this Agreement, or any Collateral is sold as permitted by this Section 8.05, such Collateral (unless sold to another Credit Party), but not the proceeds thereof, shall be sold free and clear of the Liens created by the Security Documents, and, so long as the Borrower or is or becomes a Guarantor by executing shall have previously provided to the Collateral Agent and delivering to the Administrative Agent a Joinder Agreement and such certifications or documents as the documents referred Collateral Agent and/or the Administrative Agent shall reasonably request in order to therein and (B) such transactiondemonstrate compliance with this Section 8.05, if the Collateral Agent shall take all actions it had been structured as an Acquisition by deems appropriate in order to effect the Borrower or Subsidiary of the Borrower, would not have been prohibited under Section 8.6foregoing.
Appears in 1 contract
Mergers and Consolidations. Subject Wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation (or agree to Sections 8.13 and 8.14, the Borrower will not, nor will permit do any of its Subsidiaries tothe foregoing at any future time), become a party to any merger, amalgamation or consolidation, except, so long as no Default or Event of Default except that the following shall have occurred and be continuing or would result therefrom, permitted:
(a) the Transactions as contemplated by the Transaction Documents;
(b) Asset Sales in compliance with Section 6.06;
(c) acquisitions in compliance with Section 6.07;
(d) any Subsidiary of the Company may merge or consolidate with or into (x) any Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary (as long as Parent Borrower is the surviving corporation person in the case of such any merger or consolidation involving Parent Borrower, the Subsidiary Borrower is the surviving person in the case of any merger or merger, (b) any consolidation involving the Subsidiary Borrower and a Guarantor is the surviving person and remains a Wholly Owned Subsidiary of Parent Borrower in any other case); provided that the Borrower Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.11 or Section 5.12, as applicable or (other than y) if such Company is not a Guarantor) may consolidate or merge into Loan Party, any other Subsidiary of the Parent Borrower that is not a Loan Party; and
(other than a Guarantor) and (ce) any Subsidiary of the Borrower may merge dissolve, liquidate or consolidate into another Personwind up its affairs at any time; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would such dissolution, liquidation or winding up, as applicable, could not exceed 85% reasonably be expected to have a Material Adverse Effect and (y) the Total Facility Usage Ratio would not exceed 85% as determined on if such Subsidiary is a pro forma basis over the six month period immediately following the effective date Loan Party, all remaining assets of such Loan Party are transferred to any Borrower or another Guarantor. Notwithstanding anything to the contrary, for so long as the Convertible Notes remain outstanding, no Company shall wind up, liquidate or dissolve its affairs or enter into any transaction of merger or such consolidation, in form and substance satisfactory consolidation (or agree to the Administrative Agent, based on reasonable projections do any of the financial performance foregoing at any future time), with the Subsidiary Borrower and the Subsidiary Borrower shall not wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation (or agree to do any of the Borrower, (iii) the disposition of the assets of the Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to foregoing at any of (afuture time), (b) and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect to such merger or consolidation, in accordance with Section 7.11, is the Borrower or is or becomes a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and the documents referred to therein and (B) such transaction, if it had been structured as an Acquisition by the Borrower or Subsidiary of the Borrower, would not have been prohibited under Section 8.6.any other Company
Appears in 1 contract
Mergers and Consolidations. Subject to Sections 8.13 and 8.14Wind up, the Borrower will not, nor will permit liquidate or dissolve its affairs or enter into any transaction of its Subsidiaries to, become a party to any merger, amalgamation merger or consolidation, except, so long as no Default or Event of Default except that the following shall have occurred and be continuing or would result therefrom, permitted:
(a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, [reserved];
(b) any Subsidiary dispositions of the Borrower assets in compliance with Section 6.06 (other than a GuarantorSections 6.06(e), (f) may consolidate or merge into and (g));
(c) Permitted Acquisitions;
(d) any other Subsidiary of the Borrower solvent Restricted Party (other than a Guarantorthe Administrative Borrower or the Co-Borrower) and (c) any Subsidiary of the Borrower may merge or consolidate with or into another Person; provided that the Administrative Borrower or a Subsidiary Guarantor (so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) in the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% and (y) the Total Facility Usage Ratio would not exceed 85% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to event the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition of the assets of the Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that is a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect party to such merger or consolidation, the Administrative Borrower shall be the surviving person, and (ii) in any other case, a Subsidiary Guarantor shall be the surviving person and shall remain, directly or indirectly, a Wholly Owned Restricted Subsidiary of the Administrative Borrower); provided, that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 7.115.10 or Section 5.11, as applicable;
(e) any Restricted Subsidiary of the Administrative Borrower that is not a Loan Party may merge into any other Restricted Subsidiary of the Administrative Borrower that is not a Loan Party;
(f) any Restricted Subsidiary of the Administrative Borrower that is not a Loan Party may dissolve, liquidate or wind up its affairs at any time if such dissolution, liquidation or winding up would not reasonably be expected to be disadvantageous to the Agents and the Lenders in any material respect; and
(g) SPV Acquisitions structured as a merger transaction. To the extent the requisite Lenders under Section 11.02(b) waive the provisions of this Section 6.05 with respect to the sale of any Collateral not otherwise permitted under this Agreement, or any Collateral is or becomes a Guarantor sold as permitted by executing this Section 6.05, such Collateral (unless sold to another Loan Party), but not the proceeds thereof, shall be sold free and delivering clear of the Liens created by the Security Documents, and, so long as the Administrative Borrower shall have previously provided to the Collateral Agent and the Administrative Agent a Joinder Agreement and such certifications or documents as the documents referred Collateral Agent and/or the Administrative Agent shall reasonably request in order to therein and (B) such transactiondemonstrate compliance with this Section 6.05, if the Collateral Agent shall take all actions it had been structured as an Acquisition by deems appropriate in order to effect the Borrower or Subsidiary of the Borrower, would not have been prohibited under Section 8.6foregoing.
Appears in 1 contract
Mergers and Consolidations. Subject to Sections 8.13 and 8.14In any single transaction or series of transactions, the Borrower will not, nor will permit any of its Subsidiaries to, become directly or indirectly: (a) liquidate or dissolve; (b) be a party to any merger, amalgamation merger or consolidation, except, consolidation unless and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and that is continuing or would result therefromthen continuing, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate immediately thereafter and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% thereto, no event will occur and (y) the Total Facility Usage Ratio would not exceed 85% as determined on be continuing which constitutes a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the BorrowerDefault, (iii) the disposition applicable Obligor (or one of such Obligors if such merger is between Obligors) subject to such merger is the assets surviving Person and (iv) Agent is given at least 30 days' prior notice of such merger or consolidation involving any Obligor. The provisions of this Section are subject to the restrictions set forth in SECTION 8.13 hereof. Notwithstanding the foregoing, so long as no Event of Default has occurred which is continuing (or will arise by reason thereof)
(a) any Subsidiary of Borrower may merge with Borrower or any Obligor provided that Borrower or such Obligor is the surviving entity, or with one or more Subsidiaries of Borrower (including without limitation mergers between newly acquired Subsidiaries in connection with any acquisition permitted hereunder) provided that if any merger is between a wholly-owned Subsidiary would have been permitted under Section 8.5.2of Borrower and a Subsidiary of Borrower which is not a wholly-owned Subsidiary, (iv) such wholly-owned Subsidiary of Borrower shall be the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a)surviving entity, (b) and any Subsidiary of Borrower may sell all or substantially all of its assets (upon voluntary liquidation or otherwise) to Borrower or any other Obligor or, so long as such Subsidiary is not an Obligor, to another wholly-owned Subsidiary of Borrower, (c) above (except that any Subsidiary which is not a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall Material Subsidiary may be permitted) liquidated or dissolved, and (v)(Ad) the surviving entitymergers, immediately after giving effect to such merger consolidations or consolidation, in accordance with Section 7.11, is the Borrower or is or becomes a Guarantor dissolutions by executing and delivering to the Administrative Agent a Joinder Agreement and the documents referred to therein and (B) such transaction, if it had been structured as an Acquisition by the Borrower or any Subsidiary of Borrower to change its state of incorporation or to change the Borrower, would form of entity are not have been prohibited under Section 8.6prohibited.
Appears in 1 contract
Mergers and Consolidations. Subject to Sections 8.13 and 8.14None of Holdings, the Parent Borrower or any other Re- stricted Subsidiary will wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolida- tion (or agree to do any of the foregoing at any future time), except that the following shall be permitted:
(a) acquisitions in compliance with Section 9.22 and asset sales in compliance with Section 9.16;
(b) Holdings, the Parent Borrower or any other Restricted Subsidiary may merge or ▇▇▇▇▇▇▇- date with or into a Borrower or any Subsidiary Guarantor (as long as, in the case of any merger or ▇▇▇▇▇▇▇- dation involving a Borrower, such Borrower is the surviving person and, in any other case, a Subsidiary Guarantor is the surviving person and remains a Wholly-Owned Subsidiary of Holdings ); provided that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent un- der the Security Instruments shall be maintained or created in accordance with the provisions of Sec- tion 8.05 or Section 8.09, as applicable;
(c) any Restricted Subsidiary (other than a Borrower) may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or winding up, as applicable, would not, nor will permit in- dividually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(d) any Restricted Subsidiary (other than a Borrower) may merge with any other Person in order to effect an Investment permitted pursuant to Section 9.03; provided that the continuing or surviving Person shall be a Restricted Subsidiary and shall have complied with the requirements of its Subsidiaries toSection 8.09; and
(e) any Restricted Subsidiary (other than a Borrower) may consummate any winding-up, become a party to any mergerliq- uidation, amalgamation dissolution, merger or consolidation, exceptthe purpose of which is to effect an Asset Sale permitted pursuant to Section 9.16.. To the extent the Majority Lenders or all the Lenders, as applicable, waive the provisions of this Sec- tion 9.08 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.08, such Collateral (unless sold to Holdings, a Borrower or any Domestic Material Restricted Subsidiary) shall be sold free and clear of the Liens created by the Security Instruments, and, so long as no Default or Event of Default the Parent Borrower shall have occurred and be continuing or would result therefrom, (a) any Subsidiary of the Borrower may consolidate or merge into the Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, provided the Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (b) any Subsidiary of the Borrower (other than a Guarantor) may consolidate or merge into any other Subsidiary of the Borrower (other than a Guarantor) and (c) any Subsidiary of the Borrower may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Ratio would not exceed 85% and (y) the Total Facility Usage Ratio would not exceed 85% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the Borrower, (iii) the disposition of the assets of the Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(A) the surviving entity, immediately after giving effect to such merger or consolidation, in accordance with Section 7.11, is the Borrower or is or becomes a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and and/or the Collateral Agent such certifications or documents referred as any such Agent shall rea- sonably request in order to therein and (B) demonstrate compliance with this Section 9.08, such transaction, if it had been structured as an Acquisition Agents shall take all actions neces- sary or reasonably requested by the Borrower or Subsidiary of Companies in order to effect the Borrower, would not have been prohibited under Section 8.6foregoing.
Appears in 1 contract
Mergers and Consolidations. Subject to Sections 8.13 and 8.14Section 9.13, none of the Borrower will notBorrowers will, nor will permit any of its Subsidiaries to, become a party to any merger, amalgamation or consolidation, except, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, (a) any Borrower (other than BGI) may merge or consolidate into another Borrower, (b) any Subsidiary of the Borrower BGI may consolidate or merge into the any Borrower, a Guarantor or any Wholly-owned Subsidiary of the Borrower, a Borrower provided the a Borrower, a Guarantor or the Wholly-owned Subsidiary is the surviving corporation of such consolidation or merger, (bc) any Subsidiary of the Borrower BGI (other than a Borrower or Guarantor) may consolidate or merge into any other Subsidiary of the BGI (other than a Borrower or Guarantor) and (d) any Borrower (other than a GuarantorBGI) and (c) any or Subsidiary of the Borrower BGI may merge or consolidate into another Person; provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) the Borrower BGI delivers to the Lenders on or before the date on which any of its Subsidiaries agrees to or consummates such merger or such consolidation a certificate of the principal financial or accounting officer of the Borrower Borrowers certifying as accurate and complete the monthly pro forma financial projections attached thereto and demonstrating immediately after giving effect to such merger or such consolidation (x) the Total Facility Usage Excess Availability Ratio would not exceed 85be less than 10% and (y) the Total Facility Usage Excess Availability Ratio would not exceed 85be less than 10% as determined on a pro forma basis over the six month period immediately following the effective date of such merger or such consolidation, in form and substance satisfactory to the Administrative Agent, based on reasonable projections of the financial performance of the BorrowerBorrowers, (iii) the disposition of the assets of the such Borrower or such Subsidiary would have been permitted under Section 8.5.2, (iv) the Paperchase Businesses, without prior consent by the Required Lenders, may not be subject to any of (a), (b) 9.5.2 and (c) above (except that a merger in connection with a Disposition of the Paperchase Businesses as permitted by Section 8.14(c) shall be permitted) and (v)(Aiv)(A) the surviving entity, immediately after giving effect to such merger or consolidation, in accordance with Section 7.118.14, is the Borrower or is or becomes a Borrower or a Guarantor by executing and delivering to the Administrative Agent a Joinder Agreement and the documents referred to therein and (B) such transaction, if it had been structured as an Acquisition by the any Borrower or Subsidiary of the BorrowerBGI, would not have been prohibited under Section 8.69.6.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Agreement (Borders Group Inc)