Common use of Consolidation and Merger; Asset Acquisitions Clause in Contracts

Consolidation and Merger; Asset Acquisitions. Neither a Borrower nor the Guarantor will consolidate with or merge into any Person, or permit any other Person to merge into it, acquire (in a transaction analogous in purpose or effect to a consolidation or merger) all or substantially all the assets of any other Person unless: (a) the corporation formed by such consolidation or into which the Borrower or the Guarantor, as the case may be, is merged (if the Borrower or the Guarantor is not the surviving entity) or the Person that acquires by conveyance or transfer all or substantially all of the properties and assets of the Borrower or the Guarantor, as the case may be, (i) shall be a corporation organized and existing under the laws of the Unites States of America or any State or the District of Columbia, (ii) shall expressly assume by an amendment to or restatement of this Agreement, or the Guaranty, as applicable, the performance of every covenant of this Agreement on the part of the Borrower or of the Guaranty on the part the Guarantor to be performed or observed and (iii) if such corporation is a holding company with a significant portion of its operations conducted and assets held by one or more subsidiaries, shall provide for guaranties from such subsidiaries on substantially the same terms and conditions as are set forth in the Guaranty; (b) immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; (c) immediately after giving effect to such transaction, the corporation formed by such consolidation or into which the Borrower or the Guarantor, as the case may be, is merged or the Person that acquired by conveyance or transfer all or substantially of the properties and assets of the Borrower or the Guarantor, as the case may be, shall have a tangible net worth of not less than the consolidated tangible net worth of the Borrower and Guarantor immediately preceding such transaction; (d) the Borrower and the Guarantor have delivered to the Lender an officer’s certificate and opinion of counsel (which opinion may rely, as to factual matters, upon a certificate of an executive officer of the Borrower or the Guarantor) stating that such consolidation , merger conveyance or transfer and such amendment or restatement complies with this Section 6.17 and that all conditions precedent herein relating to such transaction have been complied with; and (e) such merger, consolidation or sale has been approved prior to the transaction in writing by the Lender. Upon any consolidation or merger of the Borrower or the Guarantor into another entity, or any conveyance or transfer of all or substantially all of the properties and assets of the Borrower or the Guarantor in accordance herewith, the successor entity formed by such consolidation or into which the Borrower or the Guarantor, as the case may be, is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of the Borrower under this Agreement with the same effect as if such successor entity had been named as the Borrower herein. Any Borrower may acquire another Person or substantially all the assets of another Person so long as the cash consideration for such acquisition does not exceed $20,000,000 for all such transactions in any fiscal year of the Borrowers; and further provided that immediately after giving effect to such transaction, (i) no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing and (ii) the Borrowers’ actual amount of aggregate cash and marketable securities that are permitted investments under Section 6.6 as of the measurement date immediately following such transaction, shall not be less than 60% of the aggregate of such items set forth in the Borrowers’ projections delivered to Lender for the applicable period.

Consolidation and Merger; Asset Acquisitions. Neither a The Borrower nor the Guarantor will not, and will not permit any of its Subsidiaries to, consolidate with or merge into any Person, or permit any other Person to merge into it, or acquire (in a transaction analogous in purpose or effect to a consolidation or merger) all or substantially all the assets of any other Person unlessPerson, provided, however, that the restrictions contained in this Section 6.8 shall not apply to or prevent: (a) the corporation formed by such consolidation or into which merger of a Subsidiary with, or a conveyance or transfer of its assets to, the Borrower or the Guarantor, as the case may be, is merged (if the Borrower or the Guarantor is not the surviving entity) or the Person that acquires by conveyance or transfer all or substantially all of the properties and assets of the Borrower or the Guarantor, as the case may be, (i) shall be a corporation organized and existing under the laws of the Unites States of America continuing or any State or the District of Columbia, (ii) shall expressly assume by an amendment to or restatement of this Agreement, or the Guaranty, as applicable, the performance of every covenant of this Agreement on the part of the Borrower or of the Guaranty on the part the Guarantor to be performed or observed and (iii) if such corporation is a holding company with a significant portion of its operations conducted and assets held by one or more subsidiaries, shall provide for guaranties from such subsidiaries on substantially the same terms and conditions as are set forth in the Guarantysurviving corporation); (b) immediately after giving effect to such transaction, no Event the acquisition of Default, and no event that, after notice or lapse assets of time, or both, would become an Event of Default, shall have occurred and be continuing;other Persons permitted by Section 6.4; or (c) immediately after the Mykrolis Merger Transaction, provided that each of the following conditions shall have been satisfied: (i) the Borrower shall have provided to the Agent financial information about Mykrolis Corporation and the proposed combined entity that the Agent shall have reasonably requested, consisting of at least (x) audited annual financial statements for Mykrolis Corporation, and quarterly unaudited financial statements, for the most recently-ended fiscal year and quarter of Mykrolis Corporation, (y) an opening balance sheet and pro-forma financial statements of the combined entity, prepared on a good faith basis in accordance with GAAP, which statements shall designate material changes in the application of GAAP to the combined entity from the application of GAAP to the Borrower prior to the Mykrolis Merger Transaction; (ii) such financial statements shall establish, and the Borrower shall certify in a written compliance certificate (showing calculation in reasonable detail), which may be in the form of Exhibit B attached to the Eighth Amendment hereof, delivered to the Agent, that upon giving effect to such transactionthe Mykrolis Merger Transaction, no Default or Event of Default shall exist hereunder, including compliance with the corporation formed by such consolidation or into which financial requirements applicable to the Borrower or after the Guarantor, as the case may be, is merged or the Person that acquired by conveyance or transfer all or substantially of the properties and assets of the Borrower or the Guarantor, as the case may be, shall have a tangible net worth of not less than the consolidated tangible net worth of the Borrower and Guarantor immediately preceding such transactionMykrolis Merger Date; (diii) the Mykrolis Merger Transaction shall be consummated materially in compliance with the description thereof presented to the Agent and reflected in the definition thereof in this Agreement and the Form S-4 filed by the Borrower dated May 9, 2005; (iv) the Borrower shall have executed (if applicable) and the Guarantor have delivered to the Lender an officer’s certificate Agent such documents as the Agent shall reasonably request to confirm to the Agent that all rights of the Agent and Banks hereunder shall not be affected or impaired by the Mykrolis Merger Transaction, which shall, in any case, include (w) any amendment or restatement of this Agreement as the Agent shall request, (x) confirmation of the Guaranties, (y) certified copies of all articles of merger or similar documents, (z) a legal opinion of counsel to the post-merger Borrower, confirming such matters as the Agent shall reasonably request; (which opinion may rely, as to factual matters, upon a certificate of an executive officer of v) the Borrower shall have provided to the Agent such other documents or assurances the Guarantor) stating Agent shall have reasonably requested to confirm that such consolidation , merger conveyance or transfer the Loan Documents remain in full force and such amendment or restatement complies with this Section 6.17 effect and that all conditions precedent herein relating to such transaction have been complied withthe Agent’s and the Banks’ rights thereunder remain unimpaired; and (evi) such merger, consolidation or sale has been approved prior to the transaction in writing by the Lender. Upon any consolidation or merger of the Borrower or the Guarantor into another entity, or any conveyance or transfer of all or substantially all of the properties and assets of the Borrower or the Guarantor in accordance herewith, the successor entity formed by such consolidation or into which the Borrower or the Guarantor, as the case may be, is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of the Borrower under this Agreement with the same effect as if such successor entity had been named as the Borrower herein. Any Borrower may acquire another Person or substantially all the assets of another Person so long as the cash consideration for such acquisition does not exceed $20,000,000 for all such transactions in any fiscal year of the Borrowers; and further provided that immediately after giving effect to such transaction, (i) no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, Mykrolis Merger Date shall have occurred and be continuing and (ii) the Borrowers’ actual amount of aggregate cash and marketable securities that are permitted investments under Section 6.6 as of the measurement date immediately following such transactionon or before December 31, shall not be less than 60% of the aggregate of such items set forth in the Borrowers’ projections delivered to Lender for the applicable period2005.”

Consolidation and Merger; Asset Acquisitions. Neither a The Borrower nor the Guarantor will not consolidate with or merge into any Person, or permit any other Person to merge into it, or acquire (in a transaction analogous in purpose or effect to a consolidation or merger) all or substantially all the assets of any other Person Person, unless: (a) the corporation formed by such consolidation or into which the Borrower or the Guarantor, as the case may be, is merged (if the Borrower or the Guarantor is not the surviving entity) or the Person that which acquires by conveyance or transfer all or substantially all of the properties and assets of the Borrower or the Guarantor, as the case may be, (i) shall be a corporation organized and existing under the laws of the Unites United States of America or any State or the District of Columbia, (ii) shall expressly assume by an amendment to or restatement of this Agreement, or executed and delivered to the GuarantyLender, as applicablein form satisfactory to the Lender, the performance of every covenant of this Agreement on the part of the Borrower or of the Guaranty on the part and the Guarantor to be performed or observed and (iii) if such corporation or Person is a holding company with a significant portion of its operations conducted and assets held by one or more subsidiaries, shall provide for guaranties from such subsidiaries on substantially the same terms and conditions as are set forth in the Guaranty; (b) immediately after giving effect to such transaction, no Event of Default, and no event thatwhich, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; (c) immediately after giving effect to such transaction, the corporation formed by such consolidation or into which the Borrower or the Guarantor, as the case may be, is merged or the Person that which acquired by conveyance or transfer all or substantially all of the properties and assets of the Borrower or the Guarantor, as the case may be, shall have a tangible net worth of not less than the consolidated tangible net worth of the Borrower and Guarantor immediately preceding such transaction; (d) the Borrower and the Guarantor have delivered to the Lender an officer’s 's certificate and an opinion of counsel (which opinion may rely, as to factual matters, upon a certificate of an executive officer of the Borrower or the Guarantor) stating that such consolidation consolidation, merger merger, conveyance or transfer and such amendment or restatement complies with this Section 6.17 7.7setAc and that all conditions precedent herein relating to such transaction have been complied with; and (e) such merger, consolidation or sale has been approved prior to the transaction in writing by the Lender. Upon any consolidation or merger of the Borrower or the Guarantor into another entity, or any conveyance or transfer of all or substantially all of the properties and assets of the Borrower or the Guarantor in accordance herewith, the successor entity formed by such consolidation or into which the Borrower or the Guarantor, as the case may be, is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of the Borrower under this Agreement with the same effect as if such successor entity had been named as the Borrower herein. Any Borrower may acquire another Person or substantially all the assets of another Person so long as the cash consideration for such acquisition does not exceed $20,000,000 for all such transactions in any fiscal year of the Borrowers; and further provided that immediately after giving effect to such transaction, (i) no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing and (ii) the Borrowers’ actual amount of aggregate cash and marketable securities that are permitted investments under Section 6.6 as of the measurement date immediately following such transaction, shall not be less than 60% of the aggregate of such items set forth in the Borrowers’ projections delivered to Lender for the applicable period.