Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except: (a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and (b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as: (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and (ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation: (A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents; (B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and (C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 5 contracts
Samples: Credit Agreement, Credit Agreement (Royal Caribbean Cruises LTD), Term Loan Agreement (Royal Caribbean Cruises LTD)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiarySubsidiary of the Borrower, and the assets or stock (or other ownership interests) of any Subsidiary of the Borrower may be purchased or otherwise acquired by the Borrower or any other Subsidiary of the Borrower or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7Clause 9.7 (Asset Dispositions, etc.); and
(b) so long as no Event of Default or Mandatory Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to ninety per cent. (90% %) of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporationentity:
(A) the surviving corporation entity shall have assumed in a writing, delivered to the Administrative Facility Agent, all of the Borrower’s obligations hereunder and under the other Loan Finance Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply Borrower shall have provided such documentation and other evidence information as is reasonably requested by the Administrative Facility Agent (for itself or on behalf of any Lender and/or, if the Funding Agreement is then in effect, the Funding Entity) in order for the Administrative Facility Agent (or such Lender and/or the Funding Entity, as the case may be) to carry out and be satisfied that it has complied with the results of all necessary “know your customer” or and other similar checks under all applicable laws and regulations (including all applicable anti-money laundering and anti-corrupt practices laws and regulations) in connection with the surviving entity; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation BpiFAE shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal consented to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementmerger.
Appears in 4 contracts
Samples: Fifth Amendment and Restatement Agreement (Royal Caribbean Cruises LTD), Credit Agreement (Royal Caribbean Cruises LTD), Credit Agreement (Royal Caribbean Cruises LTD)
Consolidation, Merger, etc. (a) The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiaryWholly-Owned Subsidiary of the Borrower or any Guarantor, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Wholly-Owned Subsidiary of the Borrower or (ii) merge with any Guarantor provided, however, that the Subsidiaries listed on Schedule 7.2.8 hereto may dissolve to the extent that the assets and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; andliabilities of such Subsidiaries are de-minimus;
(b) so long as no Default or Event of Default or Prepayment Event has occurred exists and is continuing or would occur after giving effect thereto, the Borrower or any Wholly-Owned Subsidiary of its Subsidiaries the Borrower (or in the case of the purchase of an ASC Facility, the Borrower or any Subsidiary of the Borrower) may consummate a Permitted Acquisition; and
(c) any Subsidiary may liquidate or dissolve into or merge with or into any other Person, or any other Person may merge into the Borrower or any such Subsidiaryprovided that, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
after giving effect thereto (i) after giving effect thereto, the Stockholders’ Equity no Default or Event of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretoDefault shall exist or be continuing; and
(ii) in the case Net Worth of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender Person shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount Net Worth of the Advances owing to such Protesting Lender, together with accrued interest thereon applicable Subsidiary immediately prior to the date consummation of payment any such liquidation, dissolution or merger and (iii) the surviving Person shall assume all Obligations of such principal amount and all other amounts payable to such Protesting Lender the applicable Subsidiary under this Agreementthe Loan Documents.
Appears in 4 contracts
Samples: Credit Agreement (Novamed Inc), Credit Agreement (Novamed Inc), Credit Agreement (Novamed Inc)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof), except:
(a) any such Subsidiary Guarantor may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower (provided that the Borrower is the surviving Person) or any other SubsidiaryGuarantor, and the assets or stock of any Subsidiary Guarantor may be purchased or otherwise acquired by the Borrower or any other Subsidiary Guarantor; provided further, that in no event shall any Guarantor consolidate with or (ii) merge with and into another any other Guarantor unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding shares of Capital Stock of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted maintain the collateral position of the Administrative Agent and the Secured Parties therein as contemplated by Section 6.2.7this Agreement; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any Guarantor may (to the extent permitted by clause (f) of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may Section 8.5) purchase or otherwise acquire all or substantially all of the assets or stock of any PersonPerson (or any division thereof) (other than the Borrower or any Restricted Subsidiary, such intercompany transactions being subject to clause (a)), or acquire such Person by merger (provided, in each case so long as:
(i) after giving effect theretocase, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where that the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and Person in any event no later than five Business Days after the delivery of such notice, for merger or consolidation it is a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend party to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement).
Appears in 3 contracts
Samples: Senior Secured Credit Agreement (Titan Corp), Senior Secured Credit Agreement (Titan Corp), Senior Secured Credit Agreement (Titan Corp)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiaryWholly-Owned Subsidiary of the Borrower or any Guarantor, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Wholly-Owned Subsidiary of the Borrower or (ii) merge with any Guarantor provided, however, that the Subsidiaries listed on Schedule 7.2.8 hereto may dissolve to the extent that the assets and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; andliabilities of such Subsidiaries are de-minimus;
(b) so long as no Default or Event of Default or Prepayment Event has occurred exists and is continuing or would occur after giving effect thereto, the Borrower or any Wholly-Owned Subsidiary of its Subsidiaries the Borrower (or in the case of the purchase of an ASC Facility, the Borrower or any Subsidiary of the Borrower) may consummate a Permitted Acquisition; and
(c) any Subsidiary may liquidate or dissolve into or merge with or into any other Person, or any other Person may merge into the Borrower or any such Subsidiaryprovided that, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
after giving effect thereto (i) after giving effect thereto, the Stockholders’ Equity no Default or Event of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretoDefault shall exist or be continuing; and
(ii) in the case Net Worth of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender Person shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount Net Worth of the Advances owing to such Protesting Lender, together with accrued interest thereon applicable Subsidiary immediately prior to the date consummation of payment any such liquidation, dissolution or merger and (iii) the surviving Person shall assume all Obligations of such principal amount and all other amounts payable to such Protesting Lender the applicable Subsidiary under this Agreementthe Loan Documents.
Appears in 3 contracts
Samples: Credit Agreement (Novamed Inc), Credit Agreement (Novamed Inc), Credit Agreement (Novamed Inc)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) a. any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.77.2.7; and
(b) b. so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Facility Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Facility Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Facility Agent or any Lender in order for the Administrative Facility Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Facility Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Facility Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances Loan owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Royal Caribbean Cruises LTD), Credit Agreement (Royal Caribbean Cruises LTD), Loan Agreement (Royal Caribbean Cruises LTD)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7Subsidiary; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) , the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) Documents to which it is a party , provided, that so long as the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as FEC Interest Equalization is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberiaeffect, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender merger under this clause (a “Protesting Lender”ii) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal is subject to the aggregate outstanding principal amount consent of FEC (it being agreed that failure to obtain the Advances owing consent of FEC shall not constitute an Event of Default under Section 8.1.3 but may give FEC grounds to such Protesting Lender, together with accrued interest thereon to terminate the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementFEC Interest Equalization).
Appears in 3 contracts
Samples: Credit Agreement (Royal Caribbean Cruises LTD), Credit Agreement (Royal Caribbean Cruises LTD), Credit Agreement (Royal Caribbean Cruises LTD)
Consolidation, Merger, etc. The Each of the Borrower and each Parent Guarantor will not, and will not permit any of its their respective Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) any such Subsidiary of the Borrower may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower (so long as the Borrower is the surviving entity of such combination or merger) or any other Subsidiary, and the assets or stock of any such Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary; provided, that notwithstanding the above, a Subsidiary may only liquidate or (ii) dissolve into, or merge with and into into, another Person Subsidiary of the Borrower if, after giving effect to such combination or merger, the Borrower continues to own (directly or indirectly), and the Administrative Agent continues to have pledged to it pursuant to a Pledge Agreement, a percentage of the issued and outstanding shares of Capital Stock (on a fully diluted basis) of the Subsidiary surviving such combination or merger that is equal to or in connection with excess of the percentage of the issued and outstanding shares of Capital Stock (on a sale fully diluted basis) of the Subsidiary that does not survive such combination or other disposition permitted merger that was (immediately prior to the combination or merger) owned by Section 6.2.7; andthe Borrower or pledged to the Administrative Agent;
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into purchase all or substantially all of the assets of any other Person, Person (or any other Person may merge into the Borrower or any such division thereof) not then a Subsidiary, or acquire such Person by merger, if permitted (without duplication) pursuant to Section 7.2.7 or clause (i) of Section 7.2.5; and
(c) so long as no Default has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered Sellers pursuant to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Asset Purchase Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Dri I Inc), Credit Agreement (Dri I Inc), Credit Agreement (Dri I Inc)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person, except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiarySubsidiary of the Borrower, and the assets or stock (or other ownership interests) of any Subsidiary of the Borrower may be purchased or otherwise acquired by the Borrower or any other Subsidiary of the Borrower or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7Clause 9.7 (Asset Dispositions, etc.); and
(b) so long as no Event of Default or Mandatory Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to ninety per cent. (90% %) of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporationentity:
(A) the surviving corporation entity shall have assumed in a writing, delivered to the Administrative Facility Agent, all of the Borrower’s obligations hereunder and under the other Loan Finance Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply Borrower shall have provided such documentation and other evidence information as is reasonably requested by the Administrative Facility Agent (for itself or on behalf of any Lender and/or, if the Funding Agreement is then in effect, the Funding Entity) in order for the Administrative Facility Agent (or such Lender and/or the Funding Entity, as the case may be) to carry out and be satisfied that it has complied with the results of all necessary “know your customer” or and other similar checks under all applicable laws and regulations (including all applicable anti-money laundering and anti-corrupt practices laws and regulations) in connection with the surviving entity; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation COFACE shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal consented to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementmerger.
Appears in 3 contracts
Samples: Facility Agreement (Royal Caribbean Cruises LTD), Facility Agreement (Royal Caribbean Cruises LTD), Facility Agreement (Royal Caribbean Cruises LTD)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower (so long as the Borrower is the surviving corporation of such combination or merger) or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary; provided, that notwithstanding the above, (i) a Subsidiary may only liquidate or dissolve into, or merge with and into, another Subsidiary of the Borrower if, after giving effect to such combination or merger, the Borrower continues to own (directly or indirectly), and the Administrative Agent continues to have pledged to it pursuant to a supplement to the WWI Pledge Agreement, a percentage of the issued and outstanding shares of Capital Securities (on a fully diluted basis) of the Subsidiary surviving such combination or merger that is equal to or in excess of the percentage of the issued and outstanding shares of Capital Securities (on a fully diluted basis) of the Subsidiary that does not survive such combination or merger that was (immediately prior to the combination or merger) owned by the Borrower or pledged to the Administrative Agent and (ii) merge with and into another Person in connection with if such Subsidiary is a sale or other disposition permitted by Section 6.2.7; andGuarantor the surviving corporation must be a Guarantor;
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into make Investments permitted under Section 7.2.5 (including any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretoPermitted Acquisition); and
(iic) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed Subsidiary may merge with another Person in a writing, delivered to the Administrative Agent, all transaction permitted by clause (b) of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementSection 7.2.9.
Appears in 3 contracts
Samples: Amendment Agreement (Weight Watchers International Inc), Credit Agreement (Weight Watchers International Inc), Credit Agreement (Weight Watchers International Inc)
Consolidation, Merger, etc. The Borrower will not3.1. Adjustments for Consolidation, and will not permit any Merger, Sale of its Subsidiaries toAssets, liquidate or dissolve------------------------------------------------------ Reorganization, etc. -------------------- In case the Company after the date hereof (a) shall consolidate with, with or merge into or with, any other Person and shall not be the continuing or surviving corporation except:
of such consolidation or merger, or (ab) shall permit any other Person to consolidate with or merge into the Company and the Company shall be the continuing or surviving Person but, in connection with such Subsidiary may (i) liquidate consolidation or dissolve voluntarily, and may merge with and intomerger, the Borrower Common Stock or Other Securities shall be changed into or exchanged for stock or other securities of any other Person or cash or any other Subsidiaryproperty, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (iic) merge with and into another Person in connection with a sale shall transfer all or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any substantially all of its Subsidiaries may merge into properties or assets to any other Person, or any other Person may merge into (d) shall effect a capital reorganization or reclassification resulting in the Borrower issue of Additional Shares of Common Stock for which adjustment in the Warrant Quantity is provided in Section 2.2.1 or any such Subsidiary2.2.2, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Personthen, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of each such transaction, proper provision shall be made so that, upon the basis and the terms and in the manner provided in this Warrant, the Holder, upon the exercise hereof at any time after the consummation of such transaction, shall be entitled to receive (at the aggregate purchase price in effect at the time of such consummation for all Common Stock or Other Securities issuable upon such exercise immediately prior to such consummation), in lieu of the Common Stock or Other Securities issuable upon such exercise prior to such consummation, the highest amount of securities, cash or other property to which such Holder would actually have been entitled as a merger involving shareholder upon such consummation if such Holder had exercised the Borrower where rights represented by this Warrant immediately prior thereto, subject to adjustments (subsequent to such consummation) as nearly equivalent as possible to the Borrower is not the surviving corporation:
(A) the surviving corporation adjustments provided for in Sections 2 through 4, provided that if a purchase, -------- tender or exchange offer shall have assumed been made to and accepted by the holders of more than 50% of the outstanding shares of Common Stock, and if the Holder so designates in a writing, delivered notice given to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective Company on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to immediately preceding the date of payment the consummation of such principal transaction, the Holder shall be entitled to receive the highest amount of securities, cash or other property to which such Holder would actually have been entitled as a shareholder if the Holder had exercised this Warrant prior to the expiration of such purchase, tender or exchange offer and all other amounts payable accepted such offer, subject to adjustments (from and after the consummation of such Protesting Lender under this Agreementpurchase, tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in Sections 2 through 4.
Appears in 3 contracts
Samples: Common Stock Purchase Warrant (Polyphase Corp), Common Stock Purchase Warrant (Polyphase Corp), Common Stock Purchase Warrant (Polyphase Corp)
Consolidation, Merger, etc. The Borrower will not, and will not permit any In case a consolidation or merger of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge the Company shall be effected with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale on or other disposition permitted by Section 6.2.7; and
(b) so long as no Event after the Date of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such SubsidiaryIssuance, or the Borrower sale, lease or any transfer of its Subsidiaries may purchase or otherwise acquire all or substantially all its assets to another Person shall be effected on or after the Date of the assets of any PersonIssuance, in each case so long as:
(i) after giving effect theretothen, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% as condition of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writingconsolidation, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, sale, lease or transfer, lawful and in any event no later than five Business Days after adequate provision shall be made whereby the delivery registered Holder of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) this Warrant Certificate shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall thereafter have the right to borrow hereunderpurchase and receive upon the basis and upon the terms and conditions specified herein (including the payment of any applicable Exercise Price) and in lieu of each Stock Unit immediately theretofore purchasable and receivable upon the exercise of each of the Warrants evidenced hereby, notify such shares of stock, securities, cash or other property which would have been receivable upon such consolidation, merger, sale, lease or transfer by the Administrative Agent holder of the number of shares of Stock comprising the aggregate of all Stock Units immediately prior to such event if all Warrants evidenced by this Warrant Certificate were fully exercisable and had been exercised in full immediately prior to such Protesting Lender consolidation, merger, sale, lease or transfer. In any such case, appropriate and equitable provision also shall be made with respect to the rights and interests of the registered Holder of this Warrant Certificate to the end that the Commitments provisions hereof (including SECTION 4) and of the Warrant Agreement and the Registration Rights Agreement shall thereafter be applicable, as nearly as may be, in relation of any shares of stock, securities, cash or other property thereafter deliverable upon the exercise of any Warrants evidenced by this Warrant Certificate. The Company shall not effect any such consolidation, merger, sale, lease or transfer unless prior to or simultaneously with the consummation thereof the successor Person (if other than the Company) resulting from such consolidation or merger or the Person purchasing, leasing or otherwise acquiring such assets shall assume the obligation to deliver to such Holder such shares of stock, securities, cash or other property as, in accordance with the foregoing provisions, such Holder may be entitled to purchase. The above provisions of this SECTION 5.01 shall similarly apply to successive consolidations, mergers, sales, leases or transfers. Notwithstanding the foregoing, in the event the Company consummates a consolidation or merger with, or the sale, lease or transfer of all or substantially all its assets to, the party identified in that certain letter dated as of September 26, 1997, between the Company and Specialty Investment I LLC within one year from the Date of Issuance, the Stock Unit Exercise Price for a Stock Unit in effect immediately prior thereto shall be increased by 25% and the Stock Unit Expiration Date shall be extended by one year. No other adjustment shall be made to the Stock Unit Exercise Price or the Stock Unit Expiration Date as a result of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one consolidation, merger, sale, lease or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementtransfer.
Appears in 3 contracts
Samples: Warrant Agreement (Lamonts Apparel Inc), Warrant Agreement (Lamonts Apparel Inc), Warrant Agreement (Lamonts Apparel Inc)
Consolidation, Merger, etc. The Borrower will notIn case the Company shall enter into any consolidation, and will not permit merger, combination or other transaction in which generally the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of its Subsidiaries toJunior Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, liquidate subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or dissolve, consolidate withfor which each share of Common Stock is changed or exchanged. In the event the Company shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or merge effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or withlesser number of shares of Common Stock, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Junior Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately before such event. If the Company has outstanding, under any stockholder rights plan or rights agreement containing “flip-over” provisions, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyrights, and may merge with and into, then the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as Company shall have no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge authority to enter into any transaction of a kind which would implicate or trigger the “flip-over” provisions of such stockholder rights plan or rights agreement, unless the other Personparty to such transaction (and/or, or any to the extent such “flip-over” provisions would apply to a parent of such other Person may merge into party, such parent) has expressly undertaken, for the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all benefit of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% holders of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered rights who would be entitled to the Administrative Agentexercise such “flip-over” rights, all of obligations and duties which the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customerflip-over” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower provisions of such merger, and in any event no later than five Business Days after the delivery of stockholder rights plan or rights agreement would purport to impose on such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing party to such Protesting Lendera transaction (and/or, together with accrued interest thereon to the date of payment of if applicable, on such principal amount and all other amounts payable a parent), as if such party (and/or parent) had been an original contractual party to such Protesting Lender under this Agreementstockholder rights plan or rights agreement.
Appears in 2 contracts
Samples: Rights Agreement (Harbor BioSciences, Inc.), Rights Agreement (Hollis Eden Pharmaceuticals Inc /De/)
Consolidation, Merger, etc. The Borrower will not(i) Subject to the provisions of Subsection (ii) below of this Section 4.1(j), and will not permit any in case of its Subsidiaries to, liquidate or dissolve, consolidate the consolidation of the Company with, or merge into merger of the Company with or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, or of the Borrower or any other Subsidiary, and the assets or stock sale of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the properties and assets of the Company to, any Person, and in each case so long as:
connection therewith consideration is payable to holders of Common Shares (ior other securities or property purchasable upon exercise of Warrants) after giving effect theretoin exchange therefor, the Stockholders’ Equity Warrants shall remain subject to the terms and conditions set forth in this Agreement and each Warrant shall, after such consolidation, merger or sale, entitle the Holder to receive upon exercise the number of shares in the capital or other securities or property (including cash) of or from the Person resulting from such consolidation or surviving such merger or to which such sale shall be made or of the Borrower and its Subsidiaries is at least equal to 90% parent of such Stockholders’ Equity Person, as the case may be, that would have been distributable or payable on account of the Common Shares if such Holder's Warrants had been exercised immediately prior theretoto such merger, consolidation or sale (or, if applicable, the record date therefor); andand in any such case the provisions of this Agreement with respect to the rights and interests thereafter of the Holders of Warrants shall be appropriately adjusted by the Board in good faith so as to be applicable, as nearly as may reasonably be, to any shares, other securities or any property thereafter deliverable on the exercise of the Warrants.
(ii) Notwithstanding the foregoing, (x) if the Company merges or consolidates with, or sells all or substantially all of its property and assets to, another Person (other than an Affiliate of the Company) and consideration is payable to holders of Common Shares in exchange for their Common Shares in connection with such merger, consolidation or sale which consists solely of cash, or (y) in the event of the dissolution, liquidation or winding up of the Company, then the Holders of Warrants shall be entitled to receive distributions on the date of such event on an equal basis with holders of Common Shares (or other securities issuable upon exercise of the Warrants) as if the Warrants had been exercised immediately prior to such event, less the Exercise Price. Upon receipt of such payment, if any, the rights of a Holder shall terminate and cease and such Holder's Warrants shall expire. If the Company has made a Repurchase Offer that has not expired at the time of such transaction, the holders of the Warrants will be entitled to receive the higher of (i) the amount payable to the holders of the Warrants described above and (ii) the Repurchase Price payable to the holders of the Warrants pursuant to such Repurchase Offer. In case of any such merger, consolidation or sale of assets, the surviving or acquiring Person and, in the event of any dissolution, liquidation or winding up of the Company, the Company shall deposit promptly with the Warrant Agent the funds, if any, necessary to pay the Holders of the Warrants. After receipt of such deposit from such Person or the Company and after receipt of surrendered Warrant Certificates, the Warrant Agent shall make payment by delivering a check in such amount as is appropriate (or, in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writingconsideration other than cash, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the such other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence consideration as is reasonably requested appropriate) to such Person or Persons as it may be directed in writing by the Administrative Agent or any Lender in order for the Administrative Agent or Holder surrendering such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementWarrants.
Appears in 2 contracts
Samples: Warrant Agreement (Econophone Inc), Warrant Agreement (Exide Corp)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or otherwise enter into or consummate any Acquisition, except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower (so long as the Borrower is the continuing or surviving corporation) or any other SubsidiarySubsidiary (provided, however, that a Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, the Borrower or another Subsidiary Guarantor), and the assets or stock Capital Stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary (provided, however, that the assets or (ii) Capital Stock of any Subsidiary Guarantor may only be purchased or otherwise acquired by the Borrower or another Subsidiary Guarantor); provided, further, that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Stock (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent, pursuant to such documentation and opinions as shall be necessary in the reasonable opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7; andmaintain the collateral position of the Secured Parties therein;
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretoconsummate a Permitted Acquisition; and
(iic) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied connection with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementTransactions.
Appears in 2 contracts
Samples: Credit Agreement (Global Power Equipment Group Inc/), Assignment, Amendment and Restatement Agreement (Global Power Equipment Group Inc/)
Consolidation, Merger, etc. The Borrower Company will not, and will not permit any of its Subsidiaries which are Guarantors to, wind up, liquidate or dissolvedissolve its affairs or enter into any transaction of merger, consolidate with, amalgamation or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiaryconsolidation, and the assets Company will not sell, convey or stock of any Subsidiary may be purchased transfer or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event dispose of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of its property and assets (as an entirety or substantially as an entirety in one transaction or a series of related transactions) except that:
a) any Subsidiary of the assets Company which is a Guarantor may engage in a merger constituting an asset sale or an asset acquisition otherwise permitted under this Agreement;
b) any Subsidiary of the Company (x) that is a Guarantor may be merged or amalgamated with and into the Company or any Person, in each case other Subsidiary of the Company that is a Guarantor or (y) may be merged with and into the Company so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) as in the case of a any merger involving the Borrower where Company, the Borrower Company is not the surviving corporation:Person;
c) Subsidiary Guarantors may consolidate, amalgamate or merge with or into (Awhether or not such Subsidiary Guarantor is the surviving Person) another Person (other than the Company or another Subsidiary Guarantor), so long as (x) the Person formed by or surviving corporation any such consolidation, amalgamation or merger (if other than such Guarantor) assumes all the obligations of such Subsidiary Guarantor under the Subsidiaries Guaranty and otherwise complies with the applicable requirements of Section 6.14; provided, however, that for the purpose of this clause (x), the requirements of Section 6.14(c)(i) and (ii) shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly been satisfied upon the request consummation of the Administrative Agent such consolidation or merger without regard to any Lenderadditional time otherwise permitted under Section 6.14(c); and (y) immediately before and immediately after giving effect to such transaction, supply such documentation and other evidence as is reasonably requested by the Administrative Agent no Default or any Lender in order for the Administrative Agent Event of Default shall have occurred or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulationscontinuing; and
(Cd) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than Subsidiaries of the United States Company which are not Guarantors, are otherwise permitted to be dissolved pursuant to Section 6.05, or a political subdivision thereof have no material assets or Liberia, any Lender that material liabilities may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower be dissolved and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementliquidated.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts, Inc.), Credit Agreement (Host Hotels & Resorts, Inc.)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, In case the Company after the date hereof (a) shall consolidate with, with or merge into or with, any other corporation, association, partnership, organization, business, individual, government or political subdivision thereof or a governmental agency ("Person") and shall not be the continuing or surviving corporation except:
of such consolidation or merger, or (ab) shall permit any other Person to consolidate with or merge into the Company and the Company shall be the continuing or surviving Person but, in connection with such Subsidiary may (i) liquidate consolidation or dissolve voluntarilymerger, and may merge with and into, the Borrower shares of Common Stock or other securities shall be changed into or exchanged for stock or other securities of any other Person or cash or any other Subsidiaryproperty, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (iic) merge with and into another Person in connection with a sale shall transfer all or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any substantially all of its Subsidiaries may merge into properties or assets to any other Person, or any other Person may merge into the Borrower (d) shall effect a capital reorganization or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all reclassification of the assets Common Stock or other securities (other than a capital reorganization or reclassification resulting in the issue of any Personshares of Common Stock for which adjustment in the Warrant Price is otherwise provided in Section 7.2) (each a "Merger Event"), in each case so long as:
(i) after giving effect theretothen, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of each such Merger Event, proper provision shall be made so that, upon the basis and the terms and conditions as well as in the manner provided in this Agreement, the Holder, upon the exercise of a merger involving Warrant at any time after the Borrower where consummation of such Merger Event, shall be entitled to receive (at the Borrower is not aggregate Warrant Price adjusted to reflect the surviving corporation:
modification of the number of Warrant Shares pursuant to this Section 7.2(m) in effect at the time of such consummation for all shares of Common Stock or other securities issuable upon such exercise immediately prior to such consummation), in lieu of the shares of Common Stock or other securities issuable upon such exercise prior to such consummation, the highest amount of securities, cash or other property to which such Holder would have been entitled as a stockholder upon such consummation if such Holder had exercised the rights represented by this Warrant immediately prior thereto (A) the surviving corporation shall have assumed in a writingor, delivered if applicable, immediately prior to the Administrative Agentrecord date established in connection with any such Merger Event), subject to adjustments (subsequent to such consummation) as nearly equivalent as possible to the adjustments provided for in Sections 7.2 through 7.5. In addition, for the period commencing on the date of this Agreement and terminating on the date that is the second anniversary of this Agreement, if the Company shall engage in any Merger Event wherein all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request outstanding Common Stock of the Administrative Agent Company is acquired for consideration consisting of any property or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction asset other than the common stock of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for acquiring company (the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender "Merger Consideration") (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender"Special Merger Event"), the Borrower shall, effective on or before Company shall pay immediately prior to any record date for such Special Merger Event by issuing to the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments Holder shares of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in unregistered Common Stock an aggregate amount at least equal to the aggregate outstanding principal amount underlying value of any Warrants then held by the Holder absent the consummation of the Advances owing to Special Merger Event, calculated as of the record date of the Special Merger Event using a Black-Scholes derived option pricing model for a sixty (60) day historical period immediately preceding, and ending on, the record date for such Protesting LenderSpecial Merger Event. In the event that a payment in the form of shares of unrestricted Common Stock is required by this Section 7.2(m) is required, together with accrued interest thereon it shall be a condition to the date closing of any Special Merger Event that such shares of Common Stock so issued by the Company will be entitled to receive the consideration in the Special Merger Event. To the extent that the Merger Consideration consists of the common stock of the acquiring company and any other form of consideration, the payment required by this paragraph shall be pro rated in the same proportion as the common stock component of such principal amount and all the Merger Consideration is to the other amounts payable to such Protesting Lender under this Agreementform of consideration component of the Merger Consideration.
Appears in 2 contracts
Samples: Warrant Agreement (Level 3 Communications Inc), Warrant Agreement (Level 3 Communications Inc)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) In the event that the Corporation shall consummate any such Subsidiary may consolidation or merger or similar transaction, however named, pursuant to which the outstanding shares of common stock are by operation of law exchanged solely for or changed, reclassified or converted solely into stock of any successor or resulting corporation (i) liquidate or dissolve voluntarilyincluding the Corporation), and may merge with and intoand, if applicable, for a cash payment in lieu of fractional shares, if any, the Borrower shares of Series B Preferred Stock shall be assumed by and shall become preferred stock of such successor or any resulting corporation, having in respect of such corporation insofar as possible the same powers, preferences and relative, participating, optional or other Subsidiaryspecial rights, and the assets qualifications, limitations or restrictions thereon, that the Series B Preferred Stock had immediately prior to such transaction. The rights of the Series B Preferred Stock as preferred stock of such successor or resulting corporation shall successively be subject to adjustments pursuant to paragraph 7 hereof after any Subsidiary may such transaction as nearly equivalent to the adjustments provided for by such paragraph prior to such transaction. The Corporation shall not consummate any such merger, consolidation or similar transaction unless all then outstanding shares of the Series B Preferred Stock shall be purchased or otherwise acquired assumed and authorized by the Borrower successor or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; andresulting corporation as aforesaid.
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, In the Borrower or any of its Subsidiaries may merge event the Corporation shall enter into any other Personagreement providing for any consolidation or merger or similar transaction described in paragraph 6(a), or any other Person may merge into then the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation Corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, thereafter (and in any event no later than five Business Days after the delivery at least ten (10) business days before consummation of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate transaction) give notice of such Lender (a “Protesting Lender”) shall so notify the Borrower agreement and the Administrative Agent in writing. With respect material terms thereof to each Protesting Lender, the Borrower shall, effective on or before the date that holder of Series B Preferred Stock and each such surviving corporation holder shall have the right to borrow hereunderelect, notify by written notice to the Administrative Agent and such Protesting Lender that the Commitments Corporation, to receive, upon consummation of such Protesting Lender shall be terminated; provided that transaction (if and when such Protesting Lender shall have received one transaction is consummated), from the Corporation or more payments from either the Borrower or one or more assignees successor of the Corporation, in an aggregate amount at least redemption and retirement of such Series B Preferred Stock, a cash payment equal to the aggregate outstanding principal amount payable in respect of shares of Series B Preferred Stock at the Redemption Price. No such notice of redemption shall be effective unless given to the Corporation prior to the close of business on the fifth business day prior to consummation of such transaction, unless the Corporation or the successor of the Advances owing Corporation shall waive such prior notice, but any notice of redemption so given prior to such Protesting Lender, together with accrued interest thereon time may be withdrawn by notice of withdrawal given to the date Corporation prior to the close of payment business on the fifth business day prior to consummation of such principal amount and all other amounts payable to such Protesting Lender under this Agreementtransaction.
Appears in 2 contracts
Samples: Merger Agreement (FBL Financial Group Inc), Agreement and Plan of Merger (FBL Financial Group Inc)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) the Borrower or a Wholly Owned Subsidiary may merge with another Person if (i) (A) the Borrower or such Subsidiary is the continuing Person following such merger or (B) in the case of a merger by the Borrower, the Person (if other than the Borrower) formed by such merger (including a consolidation effected by a sale or transfer of all or substantially all of the assets of a Person) is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia and expressly assumes the obligations of the Borrower under this Agreement, (ii) such merger or consolidation is otherwise permitted under the Senior Note Indentures, (iii) no Default (other than a Nonmaterial Subsidiary Default) has occurred and is continuing or would occur after giving effect thereto and (iv) after giving effect thereto, the Borrower's S&P Rating shall not be reduced below BB- and the Borrower's Moodx'x Xxxing shall not be reduced below Ba3;
(b) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary; provided, however, in no event may a Subsidiary or (ii) that holds a direct interest in a power generating facility merge with and into another Person any other Subsidiary that holds a direct or indirect interest in connection with a sale any other power generating facility or other disposition permitted by Section 6.2.7business; and
(bc) so long as no Event of Default or Prepayment Event (other than a Nonmaterial Subsidiary Default) has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or stock of any Person, in each case so long as:
Person if permitted (iwithout duplication) after giving effect thereto, the Stockholders’ Equity of the Borrower by Section 8.2.5 and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementSection 8.2.7.
Appears in 2 contracts
Samples: Bridge Credit Agreement (Calpine Corp), Credit Agreement (Calpine Corp)
Consolidation, Merger, etc. The Holdings and each Borrower will not, and will not permit any of its their respective Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Restricted Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the either Borrower or any other SubsidiaryRestricted Subsidiary (provided, however, that a Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, either Borrower or another Subsidiary Guarantor), and the assets or stock Capital Securities of any Subsidiary may be purchased or otherwise acquired by the either Borrower or any other Restricted Subsidiary (provided, however, that the assets or (ii) Capital Securities of any Subsidiary Guarantor may only be purchased or otherwise acquired by either Borrower or another Subsidiary Guarantor); provided, further, that in no event shall any Pledged Subsidiary consolidate with or merge with and into (x) any Unrestricted Subsidiary or (y) any other Subsidiary which is not another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Securities (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7; andmaintain the collateral position of the Secured Parties therein;
(b) a Borrower may merge with or into the other Borrower;
(c) so long as no Event of Specified Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the either Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (g) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Capital Securities of any PersonPerson (or any division thereof) (other than either Borrower or any of its Subsidiaries), or acquire such Person by merger (it being understood that the foregoing shall not prohibit consummation of any transaction committed to in each case so long as:
(i) after giving effect thereto, a definitive agreement that was entered into prior to the Stockholders’ Equity occurrence of the Borrower and its Subsidiaries is at least equal to 90% of any such Stockholders’ Equity immediately prior theretoSpecified Default); and
(iid) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and any transaction permitted under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementSection 11.12.
Appears in 2 contracts
Samples: Credit Agreement (WRC Media Inc), Credit Agreement (WRC Media Inc)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower (so long as the Borrower is the surviving corporation of such combination or merger) or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary; provided, that notwithstanding the above, a Subsidiary may only liquidate or (ii) dissolve into, or merge with and into into, another Person Subsidiary of the Borrower if, after giving effect to such combination or merger, the Borrower continues to own (directly or indirectly), and the Administrative Agent continues to have pledged to it pursuant to a Pledge Agreement, a percentage of the issued and outstanding shares of Capital Stock (on a fully diluted basis) of the Subsidiary surviving such combination or merger that is equal to or in connection with excess of the percentage of the issued and outstanding shares of Capital Stock (on a sale fully diluted basis) of the Subsidiary that does not survive such combination or other disposition permitted merger that was (immediately prior to the combination or merger) owned by Section 6.2.7; andthe Borrower or pledged to the Administrative Agent;
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any PersonPerson (or any division thereof) not then a Subsidiary, in each case so long as:
or acquire such Person by merger, if permitted (without duplication) pursuant to Section 7.2.7 or clause (f) or (i) after giving effect thereto, the Stockholders’ Equity of Section 7.2.5; and
(c) the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
may consummate the Merger, the Sub One Merger (ii) as defined in the case of a merger involving Transaction Agreement), the Borrower where the Borrower is not the surviving corporation:
Sub Two Merger (Aas so defined) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) transactions contemplated in the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Transaction Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Brand Scaffold Services Inc), Credit Agreement (Brand Scaffold Services Inc)
Consolidation, Merger, etc. The Borrower Company (x) will not, and and, at any time that the Guaranty Requirement is in effect, will not permit any of its Subsidiaries which are Guarantors to, wind up, liquidate or dissolvedissolve its affairs or enter into any transaction of merger, consolidate with, amalgamation or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyconsolidation, and may merge with and into(y) will not sell, the Borrower convey or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased transfer or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event dispose of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the its property and assets (as an entirety or substantially as an entirety in one transaction or a series of any Person, in each case so long as:
(irelated transactions) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) except that in the case of each of clauses (x) and (y) above:
a) any Subsidiary of the Company which is a Guarantor may engage in a merger constituting an asset sale or an asset acquisition otherwise permitted under this Agreement;
b) any Subsidiary of the Company (x) that is a Guarantor may be merged or amalgamated with and into the Company or any other Subsidiary of the Company that is a Guarantor or (y) may be merged with and into the Company so long as in the case of any merger involving the Borrower where Company, the Borrower Company is not the surviving corporation:Person;
c) Subsidiary Guarantors may consolidate, amalgamate or merge with or into (Awhether or not such Subsidiary Guarantor is the surviving Person) another Person (other than the Company or another Subsidiary Guarantor), so long as (x) the Person formed by or surviving corporation any such consolidation, amalgamation or merger (if other than such Guarantor) assumes all the obligations of such Subsidiary Guarantor under the Subsidiaries Guaranty and otherwise complies with the applicable requirements of Section 6.14; provided, however, that for the purpose of this clause (x), the requirements of Section 6.14(c)(i) and (ii) shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly been satisfied upon the request consummation of the Administrative Agent such consolidation or merger without regard to any Lenderadditional time otherwise permitted under Section 6.14(c); and (y) immediately before and immediately after giving effect to such transaction, supply such documentation and other evidence as is reasonably requested by the Administrative Agent no Default or any Lender in order for the Administrative Agent Event of Default shall have occurred or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulationscontinuing; and
(Cd) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than Subsidiaries of the United States Company which are not Guarantors, are otherwise permitted to be dissolved pursuant to Section 6.05, or a political subdivision thereof have no material assets or Liberia, any Lender that material liabilities may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower be dissolved and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementliquidated.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts L.P.), Credit Agreement (Host Hotels & Resorts L.P.)
Consolidation, Merger, etc. The Borrower ADT Limited will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, or amalgamate or consolidate with, or merge into or with, any other corporation Person, or otherwise enter into or consummate any Business Acquisition not constituting an Investment, except:
(a) any such Subsidiary of ADT Limited that is a direct or indirect parent of the Borrower may (i) liquidate or dissolve voluntarilyvoluntarily into, and may amalgamate or consolidate with or merge into, ADT Limited or any Wholly Owned Subsidiary of ADT Limited that is an indirect parent of the Borrower, and any assets or Capital Stock of any Subsidiary of ADT Limited that is an indirect parent of the Borrower may be purchased or otherwise acquired by ADT Limited or any Wholly Owned Subsidiary of ADT Limited that is an indirect parent of the Borrower;
(b) any Subsidiary of the Borrower may liquidate or dissolve voluntarily into, and may merge with and or into, the Borrower or any other SubsidiaryWholly Owned Subsidiary of the Borrower, and the any assets or stock Capital Stock of any Subsidiary of the Borrower may be purchased or otherwise acquired by the Borrower or any other Wholly Owned Subsidiary of the Borrower;
(c) any Non-Guarantor that is not a Subsidiary of the Borrower may liquidate or dissolve voluntarily into, and may merge with or into, ADT Limited or any Wholly Owned Subsidiary of ADT Limited, and any assets or Capital Stock of any such Non-Guarantor may be purchased or otherwise acquired by ADT Limited or any Wholly Owned Subsidiary of ADT Limited;
(d) ADT Limited may (i) amalgamate with or merge with or into a newly-formed corporation having no assets or liabilities, which amalgamation or merger shall be solely for the purpose of reincorporating ADT Limited under the laws of Canada or any political subdivision thereof, the United Kingdom or any political subdivision thereof or the United States of America, any state thereof or the District of Columbia or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect theretocontinue, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase redomesticate or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal become subject to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than Bermuda, to the same extent as if it had been incorporated in such jurisdiction; provided, however, that in the case of clauses (i) and (ii) above, (A) the surviving entity shall be a corporation duly organized and validly existing under the laws of Canada or any political subdivision thereof, the United States Kingdom or a any political subdivision thereof or Liberiathe United States of America, any Lender that may not legally lend to, establish credit for state thereof or the account District of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower Columbia and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on in either case, expressly assume all the obligations of ADT Limited hereunder and this Guaranty shall remain in full force and effect; (B) immediately before and immediately after giving effect to such transaction, no Default or before the date that such surviving corporation Event of Default shall have occurred and be continuing; (C) immediately after giving effect to such transaction, Stockholders' Equity of the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount surviving entity is at least equal to the Stockholders' Equity of ADT Limited immediately before such transaction less customary and reasonable transaction costs; (D) each Guarantor, unless it is the other party to the transactions described above, shall have confirmed that its Guaranty shall remain in full force and effect; and (E) the surviving entity shall have delivered, or caused to be delivered, to the Lenders an officers' certificate and an opinion of counsel, each stating that this provision has been complied with and that all conditions precedent herein provided for relating to such transaction have been satisfied;
(e) ADT Limited or any Subsidiary of ADT Limited may enter into or consummate any Permitted Business Acquisition; and
(f) ADT Limited or any Subsidiary of ADT Limited may enter into or consummate any Business Acquisition of a Related Business to the extent the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date expenditures of payment ADT Limited and its Subsidiaries in respect of such principal Business Acquisition, when added (without duplication) to (i) the aggregate amount of all expenditures of ADT Limited and all other amounts payable its Subsidiaries in respect of Business Acquisitions made pursuant to such Protesting Lender under this Agreement.clause (f) (or clause (f) of Section
Appears in 2 contracts
Samples: Guaranty (Adt Limited), Credit Agreement (Adt Limited)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries Restricted Subsidiary to, liquidate become a party to a merger or dissolve, consolidate withconsolidation, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the business or assets of any Person or all or substantially all of the shares or other evidence of beneficial ownership of any Person, in each case or wind-up, dissolve, or liquidate; provided, however, that: (a) the Borrower or any Restricted Subsidiary shall be permitted to become a party to a merger or consolidation or acquire all or substantially all of the assets of any Person or all or substantially all of the shares or other beneficial ownership of any Person, so long as:
as (i) after giving effect theretono Default is existing or would result therefrom, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of has given the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving at least 10 days prior notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such noticeconsolidation or acquisition, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”iii) shall so notify the Borrower and has provided to the Administrative Agent calculations demonstrating the pro forma compliance with all financial and other covenants contained herein, after giving effect to such merger, consolidation or acquisition, based on the most recently delivered financial statements, (iv) the total cash consideration paid in writing. With respect connection with all such mergers, consolidations, or acquisitions is otherwise permitted to each Protesting Lender, the Borrower shall, effective on be paid by Section 7.2.5(k) and any Indebtedness assumed or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either incurred by the Borrower or one any Restricted Subsidiary in connection with all such mergers, consolidations or more assignees acquisitions, is otherwise permitted to be incurred by Section 7.2.2, and (v) the Borrower or such Restricted Subsidiary (unless such merger is with the Borrower), as the case may be, is the surviving corporation in an aggregate amount at least equal to such merger or consolidation; and (b) any Restricted Subsidiary may be dissolved, liquidated or merged into the aggregate outstanding principal amount of the Advances owing to Borrower or another Restricted Subsidiary, so long as such Protesting Lenderdissolution, together with accrued interest thereon to the date of payment liquidation or merger results in all assets of such principal amount and all other amounts payable to such Protesting Lender under this AgreementRestricted Subsidiary being owned by the Borrower or another Restricted Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Magnum Hunter Resources Inc), Credit Agreement (Magnum Hunter Resources Inc)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof), except:
(a) any such Restricted Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower (so long as the Borrower is the surviving corporation of such combination or merger) or any other Restricted Subsidiary, and the assets or stock Capital Stock of any Restricted Subsidiary may be purchased or otherwise acquired by the Borrower or any other Restricted Subsidiary; provided, that notwithstanding the above, a Restricted Subsidiary may only liquidate or (ii) dissolve into, or merge with and into into, another Person Restricted Subsidiary of the Borrower if, after giving effect to such combination or merger, the Borrower continues to own (directly or indirectly), and the Administrative Agent continues to have pledged to it pursuant to a Pledge Agreement, a percentage of the issued and outstanding shares of Capital Stock (on a fully diluted basis) of the Restricted Subsidiary surviving such combination or merger that is equal to or in connection with excess of the percentage of the issued and outstanding shares of Capital Stock (on a sale fully diluted basis) of the Restricted Subsidiary that does not survive such combination or other disposition permitted merger that was (immediately prior to the combination or merger) owned by Section 6.2.7; andthe Borrower or pledged to the Administrative Agent;
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Restricted Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any PersonPerson (or any division thereof) not then a Restricted Subsidiary, in each case so long as:or acquire such Person by merger, if permitted (without duplication) pursuant to Section 7.2.7 or clause (e), (f), (l), (o) or (p) of Section 7.2.5;
(ic) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Restricted Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretomay consummate the Transaction; and
(iid) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent its Restricted Subsidiaries may liquidate or dissolve Xxxxxxx River China and Xxxxxxx River Mexico and may take any action described in writing. With respect to each Protesting Lender, the Borrower shall, effective on clause (b) or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments (d) of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementSection 8.1.9.
Appears in 2 contracts
Samples: Credit Agreement (Charles River Laboratories Holdings Inc), Credit Agreement (Charles River Laboratories Inc)
Consolidation, Merger, etc. The U.S. Borrower will not, and will not permit any of its Subsidiaries which are Guarantors to, wind up, liquidate or dissolvedissolve its affairs or enter into any transaction of merger or consolidation, consolidate withand the U.S. Borrower will not sell, convey or merge into transfer or with, any other corporation exceptotherwise dispose of all or substantially all of its property and assets (as an entirety or substantially as an entirety in one transaction or a series of related transactions) except that:
(ai) any such Subsidiary of the U.S. Borrower which is a Guarantor may engage in a merger constituting an asset sale or an asset acquisition otherwise permitted under this Agreement;
(iii) liquidate or dissolve voluntarily, and any Subsidiary of the U.S. Borrower (x) that is a Guarantor may merge be merged with and into, into the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the U.S. Borrower or any other Subsidiary of the U.S. Borrower that is a Guarantor (y) or may be merged with and into the U.S. Borrower so long as in the case of any merger involving the U.S. Borrower, the U.S. Borrower is the surviving Person;
(iii) Subsidiaries of the U.S. Borrower which are Guarantors may consolidate or merge with or into (whether or not such Guarantor is the surviving Person) another Person (other than the U.S. Borrower or another Guarantor), so long as (x) the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) assumes all the obligations of such Guarantor under the Subsidiaries Guaranty and otherwise complies with the applicable requirements of Section 10.15; provided, however, that for the purpose of this clause (x), the requirements of Section 10.15(c)(i) and (ii) merge with shall have been satisfied upon the consummation of such consolidation or merger without regard to any additional time otherwise permitted under Section 10.15(c); and into another Person in connection with a sale (y) immediately before and immediately after giving effect to such transaction, no Default or other disposition permitted by Section 6.2.7Event of Default shall have occurred or be continuing; and
(biv) so long as no Event Subsidiaries of Default or Prepayment Event has occurred and is continuing or would occur after giving effect theretothe U.S. Borrower which are not Guarantors, the Borrower or any of its Subsidiaries may merge into any other Personare otherwise permitted to be dissolved pursuant to Section 10.05, or any other Person have no material assets or material liabilities may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower be dissolved and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementliquidated.
Appears in 2 contracts
Samples: Credit Agreement (Host Hotels & Resorts L.P.), Credit Agreement (Host Hotels & Resorts, Inc.)
Consolidation, Merger, etc. The Borrower will not, and will not permit If any consolidation or merger of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge the Corporation with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiarycorporation, or the Borrower or any sale of its Subsidiaries may purchase or otherwise acquire all or substantially all of its assets to another corporation (each an “Extraordinary Event”) is effected, then, as a condition of such Extraordinary Event, the assets Corporation will cause lawful and adequate provision to be made whereby the registered holder of any Personthis Warrant will thereafter have the right to purchase and receive, upon exercise of this Warrant and the payment of the Stated Purchase Price, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity lieu of the Borrower and its Subsidiaries is at least equal to 90% shares of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all Common Stock of the Borrower’s obligations hereunder Corporation immediately theretofore purchasable and under the other Loan Documents;
(B) the surviving corporation shall, promptly receivable upon the request exercise of this Warrant, such shares of stock, securities or property (including cash) as may be issued or payable with respect to or in exchange for a number of shares of Common Stock of the Administrative Agent or any Lender, supply Corporation immediately theretofore purchasable and receivable upon the exercise of this Warrant had such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or Extraordinary Event taken place immediately after such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such mergerexercise, and in any event no later such case appropriate provision will be made with respect to the rights and interests of the holder of this Warrant to the end that the provisions of this Warrant (including, without limitation, provisions for adjustments of the Stated Purchase Price and of the number of shares purchasable upon the exercise of this Warrant) will thereafter be applicable, as nearly as may be, in relation to any shares of stock, securities or property thereafter deliverable upon the exercise of this Warrant. The foregoing provisions will similarly apply to successive Extraordinary Events. The Corporation will not effect any such consolidation, merger or sale unless, prior to the consummation thereof, the successor corporation (if other than five Business Days after the delivery Corporation) resulting from such consolidation or merger or the corporation purchasing such assets will assume by written instrument executed and mailed to the registered holder at the last address of such notice, for a surviving corporation that is organized under registered holder appearing on the laws of a jurisdiction other than books of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting LenderCorporation, the Borrower shall, effective on or before the date that such surviving corporation shall have the right obligation to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing deliver to such Protesting Lenderregistered holder such shares of stock, together securities or property as, in accordance with accrued interest thereon the foregoing provisions, such registered holder may be entitled to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementpurchase or receive.
Appears in 2 contracts
Samples: Common Stock Purchase Warrant (Plures Technologies, Inc./De), Common Stock Purchase Warrant (Plures Technologies, Inc./De)
Consolidation, Merger, etc. The Borrower will not(i) Subject to the provisions of Subsection (ii) below of this Section 3.9, and will not permit any in case of its Subsidiaries to, liquidate or dissolve, consolidate the consolidation of the Company with, or merge into merger of the Company with or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, or of the Borrower or any other Subsidiary, and the assets or stock sale of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the properties and assets of the Company to, any Person, and in each case so long as:
connection therewith consideration is payable to holders of Common Stock (ior other securities or property purchasable upon exercise of Warrants) after giving effect theretoin exchange therefor, the Stockholders’ Equity Warrants shall remain subject to the terms and conditions set forth in this Agreement and each Warrant shall, after such consolidation, merger or sale, entitle the Holder to receive upon exercise the number of shares in the capital or other securities or property (including cash) of or from the Person resulting from such consolidation or surviving such merger or to which such sale shall be made or of the Borrower and its Subsidiaries is at least equal to 90% parent of such Stockholders’ Equity Person, as the case may be, that would have been distributable or payable on account of the Common Stock if such Holder's Warrants had been exercised immediately prior theretoto such merger, consolidation or sale (or, if applicable, the record date therefor); andand in any such case the provisions of this Agreement with respect to the rights and interests thereafter of the Holders of Warrants shall be appropriately adjusted by the Board in good faith so as to be applicable, as nearly as may reasonably be, to any shares, other securities or any property thereafter deliverable on the exercise of the Warrants.
(ii) Notwithstanding the foregoing, (x) if the Company merges or consolidates with, or sells all or substantially all of its property and assets to, another Person (other than an Affiliate of the Company) and consideration is payable to holders of Common Stock in exchange for their shares of Common Stock in connection with such merger, consolidation or sale which consists solely of cash, or (y) in the event of the dissolution, liquidation or winding up of the Company, then the Holders of Warrants shall be entitled to receive distributions on the date of such event on an equal basis with holders of Common Stock (or other securities issuable upon exercise of the Warrants) as if the Warrants had been exercised immediately prior to such event, less the Exercise Price. Upon receipt of such payment, if any, the rights of the Holder shall terminate and cease and the Holder's Warrants shall expire. In case of any such merger, consolidation or sale of assets, the surviving or acquiring Person and, in the event of any dissolution, liquidation or winding up of the Company, the Company shall, after receipt of surrendered Warrant Certificates, make payment by delivering a check in such amount as is appropriate (or, in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writingconsideration other than cash, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the such other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence consideration as is reasonably requested appropriate) to such Person or Persons as it may be directed in writing by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementHolder.
Appears in 2 contracts
Samples: Stock Purchase Agreement (RMH Teleservices Inc), Common Stock Purchase Warrant (RMH Teleservices Inc)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiarySubsidiary of the Borrower, and the assets or stock (or other ownership interests) of any Subsidiary of the Borrower may be purchased or otherwise acquired by the Borrower or any other Subsidiary of the Borrower or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7Clause 9.7 (Asset Dispositions, etc.); and
(b) so long as no Event of Default or Mandatory Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to ninety per cent. (90% %) of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporationentity:
(A) the surviving corporation entity shall have assumed in a writing, delivered to the Administrative Facility Agent, all of the Borrower’s obligations hereunder and under the other Loan Finance Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply Borrower shall have provided such documentation and other evidence information as is reasonably requested by the Administrative Facility Agent (for itself or on behalf of any Lender Lender) in order for the Administrative Facility Agent (or such Lender Lender, as the case may be) to carry out and be satisfied that it has complied with the results of all necessary “know your customer” or and other similar checks under all applicable laws and regulations (including all applicable anti-money laundering and anti-corrupt practices laws and regulations) in connection with the surviving entity; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation BpiFAE shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal consented to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementmerger.
Appears in 2 contracts
Samples: Fourth Amendment and Restatement Agreement (Royal Caribbean Cruises LTD), Fifth Amendment and Restatement Agreement (Royal Caribbean Cruises LTD)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) any such Restricted Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower (so long as the Borrower is the surviving corporation of such combination or merger) or any other Subsidiary, and the assets or stock of any Restricted Subsidiary may be purchased or otherwise acquired by the Borrower or any other Restricted Subsidiary; provided, that notwithstanding the above, a Restricted Subsidiary may only liquidate or (ii) dissolve into, or merge with and into into, another Person Restricted Subsidiary of the Borrower if, after giving effect to such combination or merger, the Borrower continues to own (directly or indirectly), and the Administrative Agent continues to have pledged to it pursuant to a Pledge Agreement, a percentage of the issued and outstanding shares of Capital Stock (on a fully diluted basis) of the Restricted Subsidiary surviving such combination or merger that is equal to or in connection with excess of the percentage of the issued and outstanding shares of Capital Stock (on a sale fully diluted basis) of the Restricted Subsidiary that does not survive such combination or other disposition permitted merger that was (immediately prior to the combination or merger) owned by Section 6.2.7; andthe Borrower or pledged to the Administrative Agent;
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Restricted Subsidiaries may merge into any (other Person, or any other Person may merge into than the Borrower or any such Trademark Subsidiary and the IPO Subsidiary, or the Borrower or any of its Subsidiaries ) may purchase or otherwise acquire all or substantially all of the assets of any PersonPerson (or any division thereof) not then a Subsidiary, in each case so long as:or acquire such Person by merger, if permitted (without duplication) pursuant to Section 7.2.7 or clause (f), (j) or (k) of Section 7.2.5;
(ic) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Restricted Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in may consummate the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementTransaction.
Appears in 2 contracts
Samples: Credit Agreement (Decisionone Corp /De), Credit Agreement (Decisionone Corp /De)
Consolidation, Merger, etc. The Borrower will not(i) Subject to the provisions of Subsection (ii) below of this Section 4.1(j), and will not permit any in case of its Subsidiaries to, liquidate or dissolve, consolidate the consolidation of the Company with, or merge into merger of the Company with or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, or of the Borrower or any other Subsidiary, and the assets or stock sale of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the properties and assets of the Company to, any Person, and in each case so long as:
connection therewith consideration is payable to holders of Common Shares (ior other securities or property purchasable upon exercise of Warrants) after giving effect theretoin exchange therefor, the Stockholders’ Equity Warrants shall remain subject to the terms and conditions set forth in this Agreement and each Warrant shall, after such consolidation, merger or sale, entitle the Holder to receive upon exercise the number of shares in the capital or other securities or property (including cash) of or from the Person resulting from such consolidation or surviving such merger or to which such sale shall be made or of the Borrower and its Subsidiaries is at least equal to 90% parent of such Stockholders’ Equity Person, as the case may be, that would have been distributable or payable on account of the Common Shares if such Holder's Warrants had been exercised immediately prior theretoto such merger, consolidation or sale (or, if applicable, the record date therefor); andand in any such case the provisions of this Agreement with respect to the rights and interests thereafter of the Holders of Warrants shall be appropriately adjusted by the Board in good faith so as to be applicable, as nearly as may reasonably be, to any shares, other securities or any property thereafter deliverable on the exercise of the Warrants. 27 23
(ii) Notwithstanding the foregoing, (x) if the Company merges or consolidates with, or sells all or substantially all of its property and assets to, another Person (other than an Affiliate of the Company) and consideration is payable to holders of Common Shares in exchange for their Common Shares in connection with such merger, consolidation or sale which consists solely of cash, or (y) in the event of the dissolution, liquidation or winding up of the Company, then the Holders of Warrants shall be entitled to receive distributions on the date of such event on an equal basis with holders of Common Shares (or other securities issuable upon exercise of the Warrants) as if the Warrants had been exercised immediately prior to such event, less the Exercise Price. Upon receipt of such payment, if any, the rights of a Holder shall terminate and cease and such Holder's Warrants shall expire. If the Company has made a Repurchase Offer that has not expired at the time of such transaction, the holders of the Warrants will be entitled to receive the higher of (i) the amount payable to the holders of the Warrants described above and (ii) the Repurchase Price payable to the holders of the Warrants pursuant to such Repurchase Offer. In case of any such merger, consolidation or sale of assets, the surviving or acquiring Person and, in the event of any dissolution, liquidation or winding up of the Company, the Company shall deposit promptly with the Warrant Agent the funds, if any, necessary to pay the Holders of the Warrants. After receipt of such deposit from such Person or the Company and after receipt of surrendered Warrant Certificates, the Warrant Agent shall make payment by delivering a check in such amount as is appropriate (or, in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writingconsideration other than cash, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the such other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence consideration as is reasonably requested appropriate) to such Person or Persons as it may be directed in writing by the Administrative Agent or any Lender in order for the Administrative Agent or Holder surrendering such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementWarrants.
Appears in 2 contracts
Samples: Warrant Agreement (Nextel Communications Inc), Warrant Agreement (McCaw International LTD)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or otherwise enter into or consummate any Acquisition, except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other Wholly Owned Subsidiary (provided, however, that a Guarantor may only liquidate or dissolve into, or merge with and into, the Borrower or another Guarantor that is a Wholly Owned Subsidiary), and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Wholly Owned Subsidiary (provided, however, that the assets or (ii) stock of any Guarantor may only be purchased or otherwise acquired by the Borrower or another Guarantor); provided, further, that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary that is a Wholly Owned Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding shares of Capital Stock of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted maintain the collateral position of the Administrative Agent and the Secured Parties therein as contemplated by Section 6.2.7this Agreement; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of consummate a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementPermitted Acquisition.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation Person shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation Person shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement; provided, however, that notwithstanding any provision to the contrary in this Section 6.2.6, no merger of any Subsidiary whose Equity Interests constitute Collateral shall be permitted unless either (A) such Subsidiary shall be the surviving Person of such merger or (B) if such Subsidiary is not the surviving Person of such merger, concurrently with the consummation of such merger, the Collateral Agent shall have received a valid and perfected pledge of, and first priority security interest in, 100% of the Equity Interests (which shall constitute Collateral and Pledged Collateral) and certificates representing such Pledged Collateral shall have been delivered to the Collateral Agent (together with such legal opinions, financing statements and supporting documentation reasonably requested by the Collateral Agent).
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, liquidate or dissolve, consolidate with, or merge into ("Combine" or a "Combination") or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) any such Restricted Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, Combine into the Borrower or any other Restricted Subsidiary, and the assets or stock of any Restricted Subsidiary may be purchased or otherwise acquired by the Borrower or any other Restricted Subsidiary; provided, that notwithstanding the above, a Restricted Subsidiary or (ii) merge may only Combine with and into another Person Restricted Subsidiary if, after giving effect to such Combination, the Borrower continues to own (d)rectly or indirectly), and the Administrative Agent continues to have pledged to it pursuant to a Pledge Agreement, a percentage of the issued and outstanding shares of Capital Stock (on a fully diluted basis) of the Restricted Subsidiary surviving such Combination that is equal to or in connection with excess of the percentage of the issued and outstanding shares of Capital Stock (on a sale fully diluted basis) of the Restricted Subsidiary that does not survive such Combination that was (immediately prior to the Combination) owned by the Borrower or other disposition permitted pledged to the Administrative Agent, pursuant to such documentation and opinions as shall be necessary in the opinion of the Agents to create, perfect or maintain the collateral position of the Administrative Agent and the Secured Parties therein as contemplated by Section 6.2.7this Agreement; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Restricted Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof) not then a Restricted Subsidiary, supply or acquire such documentation and other evidence Person by Combination, if permitted (without duplication) pursuant to Section 7.2.7 to be made as is reasonably requested by the Administrative Agent a Capital Expenditure or any Lender in order for the Administrative Agent or such Lender if permitted (without duplication) pursuant to carry out and Section 7.2.5 to be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) made as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementInvestment.
Appears in 1 contract
Samples: Revolving Credit Agreement (Royster-Clark Nitrogen Realty LLC)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:Trust; Disposition of Trust Assets.
(a) any such Subsidiary may (i) liquidate COLT shall not consolidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long asunless:
(i) the Person (if other than COLT) formed by or surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any State or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the COLT Indenture Trustee, in form satisfactory to the COLT Indenture Trustee, the due and timely payment of the principal of and interest on all COLT 200_-_ Secured Notes and the performance or observance of every agreement and covenant of this COLT Indenture on the part of COLT to be performed or observed, all as provided herein;
(ii) immediately after giving effect theretoto such merger or consolidation, no Default or Event of Default shall have occurred and be continuing;
(iii) the Stockholders’ Equity of Approval Condition shall have been satisfied with respect to such transaction and such Person;
(iv) any action as is necessary to maintain the Borrower lien and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretosecurity interest created by this COLT Indenture in the COLT 200_-_ Collateral shall have been taken; and
(iiv) in COLT shall have delivered to the case COLT Indenture Trustee an Officer's Certificate and an Opinion of a merger involving Counsel addressed to COLT and the Borrower where the Borrower is not the surviving corporationCOLT Indenture Trustee, each stating:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder that such consolidation or merger and under the other Loan Documentssuch supplemental indenture comply with this Section 3.10;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent that such consolidation or merger and such supplemental indenture shall have no material adverse tax consequences to COLT or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulationsCOLT 200_-_ Secured Noteholder; and
(C) that all conditions precedent herein provided for in this Section 3.10 have been complied with, which shall include any filing required by the Exchange Act.
(b) Except as soon as practicable after receiving notice from otherwise expressly permitted by this COLT Indenture or any other COLT 200_-_ Basic Documents, COLT shall not sell, convey, exchange, transfer or otherwise dispose of any of the Borrower properties or assets included in the COLT 200_-_ Trust Estate to any Person, unless:
(i) the Person that acquires such properties or assets of such merger, COLT (A) shall be a United States citizen or a Person organized and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized existing under the laws of a jurisdiction other than of the United States of America or any State or the District of Columbia and (B) by an indenture supplemental hereto, executed and delivered to the COLT Indenture Trustee, in form satisfactory to the COLT Indenture Trustee:
(1) expressly assumes the due and punctual payment of the principal of and interest on all COLT 200_-_ Secured Notes, and the performance or observance of every agreement and covenant of this COLT Indenture on the part of COLT to be performed or observed, all as provided herein;
(2) expressly agrees that all right, title and interest so sold, conveyed, exchanged, transferred or otherwise disposed of shall be subject and subordinate to the rights of COLT 200_-_ Secured Noteholders;
(3) unless otherwise provided in such supplemental indenture, expressly agrees to indemnify, defend and hold harmless COLT against and from any loss, liability or expense arising under or related to this COLT Indenture and the COLT 200_-_ Secured Notes; and
(4) expressly agrees that such Person (or if a political subdivision thereof group of Persons, then one specified Person) shall make all filings with the Commission (and any other appropriate Person) required by the Exchange Act in connection with the COLT 200_-_ Secured Notes;
(ii) immediately after giving effect to such transaction, no Default or Liberia, any Lender that may not legally lend to, establish credit Event of Default shall have occurred and be continuing;
(iii) the Approval Condition shall have been satisfied with respect to such transaction and such Person for the account of and/or do COLT 200_-_ Secured Notes;
(iv) any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify action as is necessary to maintain the Borrower lien and security interest created by this COLT Indenture in the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation COLT 200_-_ Collateral shall have been taken; and
(v) COLT shall have delivered to the right COLT Indenture Trustee an Officer's Certificate and an Opinion of Counsel addressed to borrow hereunderCOLT, notify the Administrative Agent each stating that:
(A) such sale, conveyance, exchange, transfer or disposition and such Protesting Lender supplemental indenture comply with this Section 3.10;
(B) such sale, conveyance, exchange, transfer or disposition and such supplemental indenture have no material adverse tax consequence to COLT or to any COLT 200_-_ Secured Noteholder; and
(C) that all conditions precedent herein provided for in this Section 3.10 have been complied with, which shall include any filing required by the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementExchange Act.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower Xxxx-Xxxxx will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower Xxxx-Xxxxx or any other SubsidiarySubsidiary (provided, however, that (i) a Subsidiary Borrower may only liquidate or dissolve into, or merge with and into, Xxxx-Xxxxx or another Borrower and (ii) a Guarantor may only liquidate or dissolve into, or merge with and into, Xxxx-Xxxxx or another Borrower or Guarantor), and the assets or stock Capital Securities of any Subsidiary may be purchased or otherwise acquired by the Borrower Xxxx-Xxxxx or any other Subsidiary (provided, however, that (i) the assets or Capital Securities of any Subsidiary Borrower may only be purchased or otherwise acquired by Xxxx-Xxxxx or another Borrower and (ii) the assets or Capital Securities of any Guarantor may only be purchased or otherwise acquired by Xxxx-Xxxxx or another Borrower or Guarantor); provided further that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Securities (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7maintain the collateral position of the Secured Parties therein; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower Borrowers or any of its their Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (f) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Capital Securities of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof), supply or acquire such documentation and other evidence as is reasonably requested Person by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate merge or dissolveconsolidate with any Person and the Borrower will not, consolidate with, or merge into or withand will not permit, any other corporation Restricted Subsidiary to, transfer all or substantially all its assets to any Person, except:
(a) any such Restricted Subsidiary may (i) liquidate consolidate with or dissolve voluntarily, and may merge with and into, into or transfer all or substantially all of its assets to the Borrower or any other Restricted Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and;
(b) so long as any entity may consolidate with or merge into the Borrower or a Restricted Subsidiary if the Borrower or a Restricted Subsidiary is the surviving entity and after giving effect to such transaction (a) the Borrower's Consolidated Net Worth shall not be less than its Consolidated Net Worth immediately prior to such transaction (without regard to purchase accounting adjustments), (b) neither the Borrower nor any of its Subsidiaries shall be liable with respect to Indebtedness or allow its property to be subject to any Lien which is not permitted hereby, (c) the Borrower can incur at 101 least $1 of additional Indebtedness pursuant to clause (h) under SECTION 8.2.2.; PROVIDED, HOWEVER, this provision (b)(c) shall not apply if the consolidating or merging Person has no Event outstanding Indebtedness, (d) substantially all of Default the assets and business of the Borrower and its Restricted Subsidiaries are located in the U.S., and (e) at the time of such merger or Prepayment Event has occurred consolidation, and is continuing or would occur after giving effect thereto, no Default or Event of Default shall exist; and
(c) the Borrower may consolidate or any of its Subsidiaries may merge into any other Person, with another Person or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire transfer all or substantially all its assets to another entity if (a) the surviving or transferee entity is a corporation or limited partnership organized under U.S. law and such entity assumes all of the assets of any Personobligations under the Agreement and the Security Documents and delivers a legal opinion reasonably acceptable to Required Lenders to the effect that the assumption agreement has been duly authorized, in each case so long as:
executed and delivered by and is enforceable against the successor; and (ib) after giving effect thereto, to such transaction: (i) such entity shall not have a consolidated net worth of less than the Stockholders’ Equity Consolidated Net Worth of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretoto such transaction (without regard to purchase accounting adjustments); and
(ii) such entity shall not be liable with respect to Indebtedness or allow its property to be subject to any Lien which is not permitted hereby; (iii) such entity can incur at least $1 of additional Indebtedness pursuant to clause (h) under SECTION 8.2.2; PROVIDED, HOWEVER, this provision (c)(iii) shall not apply if the consolidating or merging entity has no outstanding Indebtedness; (iv) substantially all the assets and business of such entity are located in the case of a merger involving U.S.; and (v) at the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower time of such merger, and in any event consolidation, sale or other transaction no later than five Business Days after the delivery Default or Event of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) Default shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementexist.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate merge or dissolveconsolidate with any Person and the Borrower will not, consolidate with, or merge into or withand will not permit, any other corporation except:Restricted Subsidiary to, transfer all or substantially all its assets to any Person, except 77
(a) any such Restricted Subsidiary may (i) liquidate consolidate with or dissolve voluntarily, and may merge with and into, into or transfer all or substantially all of its assets to the Borrower or any other Restricted Subsidiary, and the assets ; (b) any entity may consolidate with or stock of any Subsidiary may be purchased or otherwise acquired by merge into the Borrower or any other a Restricted Subsidiary if the Borrower or a Restricted Subsidiary is the surviving entity and after giving effect to such transaction (iia) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
the Borrower's Consolidated Net Worth shall not be less than its Consolidated Net Worth immediately prior to such transaction (without regard to purchase accounting adjustments), (b) so long as neither the Borrower nor any of its Subsidiaries shall be liable with respect to Indebtedness or allow its property to be subject to any Lien which is not permitted hereby, (c) the Borrower can incur at least $1 of additional Indebtedness pursuant to clause (h) under SECTION 8.2.2.; PROVIDED, HOWEVER, this provision (b)(c) shall not apply if the consolidating or merging Person has no Event outstanding Indebtedness, (d) substantially all of Default the assets and business of the Borrower and its Restricted Subsidiaries are located in the U.S., and (e) at the time of such merger or Prepayment Event has occurred consolidation, and is continuing or would occur after giving effect thereto, no Default or Event of Default shall exist; and
(c) the Borrower may consolidate or any of its Subsidiaries may merge into any other Person, with another Person or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire transfer all or substantially all its assets to another entity if (a) the surviving or transferee entity is a corporation or limited partnership organized under U.S. law and such entity assumes all of the assets of any Personobligations under the Agreement and the Security Documents and delivers a legal opinion reasonably acceptable to Required Lenders to the effect that the assumption agreement has been duly authorized, in each case so long as:
executed and delivered by and is enforceable against the successor; and (ib) after giving effect thereto, to such transaction: (i) such entity shall not have a consolidated net worth of less than the Stockholders’ Equity Consolidated Net Worth of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretoto such transaction (without regard to purchase accounting adjustments); and
(ii) such entity shall not be liable with respect to Indebtedness or allow its property to be subject to any Lien which is not permitted hereby; (iii) such entity can incur at least $1 of additional Indebtedness pursuant to clause (h) under SECTION 8.2.2; PROVIDED, HOWEVER, this provision (c)(iii) shall not apply if the consolidating or merging entity has no outstanding Indebtedness; (iv) substantially all the assets and business of such entity are located in the case of a merger involving U.S.; and (v) at the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower time of such merger, and in any event consolidation, sale or other transaction no later than five Business Days after the delivery Default or Event of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) Default shall so notify the Borrower and the Administrative Agent in writingexist. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.SECTION
Appears in 1 contract
Consolidation, Merger, etc. The No Borrower will, nor will not, and will not any Borrower permit any of its Restricted Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person (including to any Unrestricted Subsidiary) (collectively, to "Merge"), or purchase or otherwise consummate an Acquisition except:
(a) any such Restricted Subsidiary may (i) liquidate or dissolve voluntarily, and may merge Merge with and into, into any Borrower (with such Borrower being the Borrower surviving Person) or any other Restricted Subsidiary, and the assets or stock Capital Securities of any Restricted Subsidiary may be purchased purchased, transferred or otherwise acquired by the any Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; andRestricted Subsidiary;
(b) Permitted Business Acquisitions permitted by Section 7.2.5;
(c) any Borrower or Restricted Subsidiary may Merge with a Person other than a Borrower or another Restricted Subsidiary so long as (i) no Event of Default or Prepayment Event has occurred and is continuing or would occur result therefrom, (ii) if applicable, the requirements contained in the Permitted Existing Asset Transfer definition are satisfied, and (iii) if such Borrower or Restricted Subsidiary owns assets other than Existing Assets, then the Fair Market Value (determined as of the date of the Merger) of such other assets shall be Disposed of pursuant to the terms of this Agreement and, if such assets are Disposed of pursuant to clause (b) of Section 7.2.6, shall cause a commensurate reduction (in an amount equal to such Fair Market Value) to the applicable basket elected by the Borrowers under which such assets were Disposed;
(d) Acquisitions to the extent permitted by Section 7.2.6;
(e) Asset Swaps permitted by clause (a) of Section 7.2.8;
(f) any Borrower may Merge with and into another Borrower; and
(g) any Borrower may liquidate or dissolve, so long as (i) both before and after giving effect thereto, the Borrower no Default has occurred and is continuing or any of its Subsidiaries may merge into any other Personwould result therefrom, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(iii) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal one Borrower remains in existence and is a party to 90% this Agreement and (iii) the assets of such Stockholders’ Equity immediately prior thereto; and
Borrower have been (iiA) transferred to another Borrower or to a Restricted Subsidiary or (B) otherwise Disposed of pursuant to the terms of this Agreement, which Disposition, in the case of any such assets disposed of pursuant to clause (b) of Section 7.2.6, shall cause a merger involving the Borrower where the Borrower is not the surviving corporation:
commensurate reduction (A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to Fair Market Value of such Protesting Lender, together with accrued interest thereon to assets determined on the date of payment of liquidation or dissolution) to the applicable basket elected by the Borrowers under which such principal amount and all other amounts payable to such Protesting Lender under this Agreementassets were Disposed.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate merge or dissolveconsolidate with any Person, consolidate withand the Borrower will not, or merge into or withand will not permit, any other corporation Restricted Subsidiary to, transfer all or substantially all its assets to any Person, except:
(a) any such Restricted Subsidiary may (i) liquidate consolidate with or dissolve voluntarily, and may merge with and into, into or transfer all or substantially all of its assets to the Borrower or any other Restricted Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and;
(b) so long as any entity may consolidate with or merge into the Borrower or a Restricted Subsidiary if the Borrower or a Restricted Subsidiary is the surviving entity and after giving effect to such transaction (a) the Borrower's Consolidated Net Worth shall not be less than its Consolidated Net Worth immediately prior to such transaction (without regard to purchase accounting adjustments), (b) neither the Borrower nor any of its Subsidiaries shall be liable with respect to Indebtedness or allow its property to be subject to any Lien which is not permitted hereby, (c) the Borrower can incur at least $1 of additional Indebtedness pursuant to clause (h) under Section 8.2.2; provided, however, this provision (b) (c) shall not apply if the consolidating or merging Person has no Event outstanding Indebtedness, (d) substantially all of Default the assets and business of the Borrower and the Restricted Subsidiaries are located in the U.S., and (e) at the time of such merger or Prepayment Event has occurred consolidation, and is continuing or would occur after giving effect thereto, no Default or Event of Default shall exist; and
(c) the Borrower may consolidate or any of its Subsidiaries may merge into any other Person, with another Person or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire transfer all or substantially all its assets to another entity if (a) the surviving or transferee entity is a corporation or limited partnership organized under U.S. law and such entity assumes all of the assets of any Personobligations under the Agreement and the Security Documents and delivers a legal opinion reasonably acceptable to Required Lenders to the effect that the assumption agreement has been duly authorized, in each case so long as:
executed and delivered by and is enforceable against the successor; and (ib) after giving effect thereto, to such transaction (i) such entity shall not have a consolidated net worth of less than the Stockholders’ Equity Consolidated Net Worth of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretoto such transaction (without regard to purchase accounting adjustments); and
(ii) such entity shall not be liable with respect to Indebtedness or allow its property to be subject to any Lien which is not permitted hereby; (iii) such entity can incur at least $1 of additional Indebtedness pursuant to clause (h) under Section 8.2.2; provided, however, this provision (c)(b)(iii) shall not apply if the consolidating or merging entity has no outstanding Indebtedness; (iv) substantially all the assets and business of such entity are located in the case of a merger involving U.S.; and (v) at the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower time of such merger, and in any event consolidation, sale or other transaction no later than five Business Days after the delivery Default or Event of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) Default shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementexist.
Appears in 1 contract
Samples: Refunding Credit Agreement (Cornerstone Propane Partners Lp)
Consolidation, Merger, etc. The Borrower Company will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Personcorporation, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
Person (ior of any division thereof) after giving effect thereto, the Stockholders’ Equity other than (a) any such transaction among or between Subsidiaries of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
Company as long as the surviving Person (ii) in the case of a merger liquidation, merger, dissolution or consolidation) or the acquiring Person (in the case of an acquisition) is a wholly-owned Subsidiary of the Company (and if as a result thereof any such Subsidiary which will cease to exist is a Designated Subsidiary, the obligations of such Subsidiary shall be assumed by a Subsidiary which is a Designated Subsidiary) or (b) any such transaction involving the Borrower where Company if the Borrower Company is not the surviving corporation:
, and provided that both before and after giving effect to any such transaction (A) whether involving the surviving corporation shall have assumed in a writingCompany or any of its Subsidiaries), delivered no Default has occurred and is continuing and the Company continues to the Administrative Agent, meet all of the Borrower’s its obligations hereunder under this Agreement and under the other Loan Documents;
. Notwithstanding the foregoing, the Company will not and will not permit any of its Subsidiaries to consummate any Acquisition unless (Bi) no Default or Event of Default shall have occurred and be continuing or would occur or exist upon consummation of the Acquisition, (ii) such Acquisition is of a business operation engaged in the same or a substantially similar line of business as that engaged in by the Company or any of its Subsidiaries on the date of the Acquisition, (iii) the surviving corporation shallprior effective written consent or approval to such Acquisition by the board of directors or equivalent governing body of the acquiree is obtained, promptly upon (iv) not less than 30 days prior to the request effective date of any Acquisition, the Company delivers to the Administrative Agent a certificate of the chief financial Authorized Corporate Officer of the Company certifying that after giving effect to such Acquisition the Company’s Consolidated Senior Debt to EBITDA Ratio as of the end of the Fiscal Quarter in which the Acquisition is effectuated will be at least 0.25 less than that required by Section 6.2.2(d), (v) the aggregate consideration to be paid by the Company and/or any of its Subsidiaries in connection with the Acquisition in the form of cash, cash equivalents (other than capital stock of the Company and/or any Subsidiary) and Indebtedness assumed by the Company and/or any Subsidiary does not exceed $50,000,000 in the aggregate, and (vi) with respect to any Acquisition in which the aggregate consideration to be paid (including the assumption of liabilities) by the Company or any Lenderof its Subsidiaries equals or exceeds $20,000,000, supply such documentation and other evidence as is reasonably requested by the Company delivers to the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving prior written notice from the Borrower of such merger, and Acquisition in any event no later than five Business Days after the delivery form of Exhibit K hereto at least 30 days prior to the effective date of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than Acquisition.”
1.18 Section 6.2 of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for Credit Agreement is hereby amended by adding the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.following thereto as Section 6.2.9:
Appears in 1 contract
Samples: Credit Agreement (Andrew Corp)
Consolidation, Merger, etc. The Each Borrower will not, and will -------------------------- not permit any of its Material Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, except:
: (a) any such Material Subsidiary (other than Ambac Assurance) may (i) liquidate or dissolve voluntarilyvoluntarily into, and may consolidate and merge with and into, the either Borrower or any other Subsidiary, Material Subsidiary of either Borrower; and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the either Borrower may consolidate or any of its Subsidiaries may merge with and into any other PersonPerson if (i) such Borrower is the surviving entity and such Borrower and its Subsidiaries, or any other Person may merge into as a whole, will continue to have the Borrower or any such Subsidiary, or the Borrower or any financial guaranty business as one of its Subsidiaries may purchase principal businesses; or otherwise acquire all or substantially (ii) all of the assets following are satisfied: (A) such Person and its Subsidiaries, as a whole, shall have the financial guaranty business as one of any Personits principal businesses, (B) such Person shall have assumed all the Obligations of such Borrower pursuant to an instrument in each case so long as:
form and substance reasonably satisfactory to the Required Lenders and shall have delivered such opinions of counsel with respect thereto as the Administrative Agent may reasonably request, (iC) both immediately prior to and after giving effect theretoto such consolidation or merger, the Stockholders’ Equity of the Borrower ratings on such Person's senior unsecured debt and its Subsidiaries (if such Person is an insurer at such time) claims-paying ability shall be at least equal to 90% of such Stockholders’ Equity as high as the applicable Borrower immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent such consolidation or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery (D) such Person meets each Lender's internal policies with respect to extensions of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than credit of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow type contemplated hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Neither Borrower will notwill, and will not permit any of its Subsidiaries their Consolidated Entities to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Subsidiary Consolidated Entity may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the US Borrower or any other Subsidiaryof its Consolidated Entities (PROVIDED that a Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, the US Borrower or another Subsidiary Guarantor), and the assets or stock Equity Interests of any Subsidiary may be purchased or otherwise acquired by the US Borrower or any other Subsidiary (PROVIDED that the assets or (ii) Equity Interests of any Subsidiary Guarantor may only be purchased or otherwise acquired by the US Borrower or another Subsidiary Guarantor); PROVIDED that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Equity Interests (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7; andmaintain the collateral position of the Secured Parties therein;
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the either Borrower or any of its Subsidiaries Consolidated Entities may merge into any other Person, (to the -70- extent permitted by CLAUSES (e) or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any (g) of its Subsidiaries may SECTION 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Equity Interests of any PersonPerson (or any division thereof), in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of or acquire such Stockholders’ Equity immediately prior theretoPerson by merger; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(Cc) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementpermitted by SECTION 7.2.11.
Appears in 1 contract
Samples: Credit Agreement (United Surgical Partners Holdings Inc)
Consolidation, Merger, etc. The Borrower will not(i) Subject to the provisions of subsection (ii) below of this Section 4.1(j), and will not permit any in case of its Subsidiaries to, liquidate or dissolve, consolidate the consolidation of Newco with, or merge into merger of Newco with or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, or of the Borrower or any other Subsidiary, and the assets or stock sale of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the properties and assets of Newco to, any Person, and in each case so long as:
connection therewith consideration is payable to holders of Common Shares (ior other securities or property purchasable upon exercise of Warrants) after giving effect theretoin exchange therefor, the Stockholders’ Equity Warrants shall remain subject to the terms and conditions set forth in this Agreement and each Warrant shall, after such consolidation, merger or sale, entitle the Holder to receive upon exercise the number of shares of capital stock or other securities or property (including cash) of Newco, or of such Person resulting from such consolidation or surviving such merger or to which such sale shall be made, as the case may be, that would have been distributable or payable on account of the Borrower and its Subsidiaries is at least equal to 90% Common Shares (or other securities or property purchasable upon exercise of Warrants) if such Stockholders’ Equity Holder's Warrants had been exercised immediately prior theretoto such merger, consolidation or sale (or, if applicable, the record date therefor); andand in any such case the provisions of this Agreement with respect to the rights and interests thereafter of the Holders of Warrants shall be appropriately adjusted by the Board of Directors of Newco in good faith so as to be applicable, as nearly as may reasonably be, to any shares of stock or other securities or any property thereafter deliverable on the exercise of the Warrants.
(ii) Notwithstanding the foregoing, (x) if Newco merges or consolidates with, or sells all or substantially all of its property and assets to, another Person (other than an Affiliate of Newco) and consideration is payable to holders of Common Shares in exchange for their Common Shares in connection with such merger, consolidation or sale which consists solely of cash, or (y) in the event of the dissolution, liquidation or winding up of Newco, then the Holders of Warrants shall be entitled to receive distributions on the date of such event on an equal basis with holders of Common Shares (or other securities issuable upon exercise of the Warrants) as if the Warrants had been exercised immediately prior to such event, less the Exercise Price. Notwithstanding the foregoing, if Newco has made, or is required to make, a Repurchase Offer pursuant to Section 3.4 hereof and such Repurchase Offer has not expired at the time of such transaction, the Holders of the Warrants shall be entitled to receive the higher of (i) the amount payable to the holders of the Warrants as described in the preceding sentence and (ii) the Repurchase Price payable to the Holders of the Warrants pursuant to such Repurchase Offer. Upon receipt of such payment, if any, the rights of a Holder shall terminate and cease and such Holder's Warrants shall expire. In case of any such merger, consolidation or sale of assets, the surviving or acquiring Person and, in the event of any dissolution, liquidation or winding up of Newco, Newco shall deposit promptly with the Warrant Agent the funds, if any, necessary to pay the Holders of the Warrants. After receipt of such deposit from such Person or Newco and after receipt of surrendered Warrant Certificates, the Warrant Agent shall make payment by delivering a check in such amount as is appropriate (or, in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writingconsideration other than cash, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the such other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence consideration as is reasonably requested appropriate) to such Person or Persons as it may be directed in writing by the Administrative Agent or any Lender in order for the Administrative Agent or Holder surrendering such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementWarrants.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries Subsidiary to, liquidate or merge, dissolve, liquidate, consolidate withwith or into another Person, except that, so long as no Default exists or merge into or with, any other corporation except:
would result therefrom (a) any Subsidiary (other than the Subsidiary Guarantors, but including each Subsidiary listed on Item 7.2.9 of the Disclosure Schedule as of the Effective Date to the extent each such Subsidiary is not a Material Subsidiary at such time) may (i) liquidate liquidate, dissolve, or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiaryU.S. Subsidiary (other than the Greens Creek Participants), (b) any Subsidiary holding Unrestricted Disposition assets may liquidate and dissolve subsequent to the Disposition of all such assets, (c) any Foreign Subsidiary (including each Subsidiary listed on Item 7.2.9 of the Disclosure Schedule as of the Effective Date to the extent each such Subsidiary is not a Material Subsidiary at such time) may liquidate, dissolve, or dissolve voluntarily into, and may merge with or into, any other Subsidiary (other than the Greens Creek Participants), (d) any Subsidiary Guarantor (other than the Greens Creek Participants) may merge with and into the Borrower or any other Subsidiary Guarantor and (e) the assets or stock Capital Securities of any Subsidiary (other than the Subsidiary Guarantors) may be purchased or otherwise acquired by the Borrower or any other Subsidiary (other than the Greens Creek Participants) and the Capital Securities or assets of any Subsidiary Guarantor (iiother than the Greens Creek Participants) merge with and into another Person in connection with a sale may be purchased or otherwise acquired by the Borrower or any other disposition permitted by Section 6.2.7Subsidiary Guarantor; and
provided that (bA) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, (B) such transaction will not affect the Borrower’s ability to repay the Loans and interest thereon when due, (C) such transaction will not affect the security interest granted under the Loan Documents in favor of the Secured Parties and (D) following such transaction, the Borrower or any will promptly deliver to the Administrative Agent an update of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all Item 6.8 of the assets of any Person, in each case so long as:
(i) after giving effect thereto, Disclosure Schedule reflecting the Stockholders’ Equity new corporate structure of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementSubsidiaries.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not3.1. Adjustments for Consolidation, and will not permit any Merger, Sale of its Subsidiaries toAssets, liquidate or dissolveReorganization, etc. In case the Company after the date hereof (a) shall consolidate with, with or merge into or with, any other Person and shall not be the continuing or surviving corporation except:
of such consolidation or merger, or (ab) shall permit any other Person to consolidate with or merge into the Company and the Company shall be the continuing or surviving Person but, in connection with such Subsidiary may (i) liquidate consolidation or dissolve voluntarily, and may merge with and intomerger, the Borrower Interests shall be changed into or exchanged for stock or other securities of any other Person or cash or any other Subsidiaryproperty, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (iic) merge with and into another Person in connection with a sale shall transfer all or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any substantially all of its Subsidiaries may merge into properties or assets to any other Person, or any other Person may merge into the Borrower (d) shall effect a capital reorganization or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all reclassification of the assets Interests (other than a capital reorganization or reclassification resulting in the issue of any PersonAdditional Interests for which adjustment in the Interest Quantity is provided in Section 2.2.1 or 2.2.2), in each case so long as:
(i) after giving effect theretothen, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of each such transaction, proper provision shall be made so that, upon the basis and the terms and in the manner provided in this Warrant, the Holder, upon the exercise hereof at any time after the consummation of such transaction, shall be entitled to receive (at the aggregate Warrant Price in effect at the time of such consummation for all Interests issuable upon such exercise immediately prior to such consummation), in lieu of the Interests issuable upon such exercise prior to such consummation, the highest amount of securities, cash or other property to which such Holder would actually have been entitled as a merger involving shareholder upon such consummation if such Holder had exercised the Borrower where rights represented by this Warrant immediately prior thereto, subject to adjustments (subsequent to such consummation) as nearly equivalent as possible to the Borrower is not the surviving corporation:
(A) the surviving corporation adjustments provided for in Sections 2 through 4, provided that if a purchase, tender or exchange offer shall have assumed been made to and accepted by the holders of more than 50% of the outstanding Interests, and if the Holder so designates in a writing, delivered notice given to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective Company on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to immediately preceding the date of payment the consummation of such principal transaction, the Holder shall be entitled to receive the highest amount of securities, cash or other property to which such Holder would actually have been entitled as a shareholder if the Holder had exercised this Warrant prior to the expiration of such purchase, tender or exchange offer and all other amounts payable accepted such offer, subject to adjustments (from and after the consummation of such Protesting Lender under this Agreementpurchase, tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in Sections 2 through 4.
Appears in 1 contract
Samples: Warrant (Diversified Food Group Inc)
Consolidation, Merger, etc. The Borrower will not(A) In the event that the Company shall consummate any consolidation or merger or similar transaction, however named, pursuant to which the outstanding shares of Common Stock are by operation of law exchanged solely for or changed, reclassified or converted solely into stock of any successor or resulting company (including the Company) that constitutes "qualifying employer securities" with respect to a holder of Series B Preferred Stock within the meaning of Section 409(e) of the Internal Revenue Code of 1986, as amended, and will not permit any Section 407(c)(5) of its Subsidiaries tothe Employee Retirement Income Security Act of 1974, liquidate or dissolve, consolidate withas amended, or merge into or withany successor provisions of law, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyand, and may merge with and intoif applicable, for a cash payment in lieu of fractional shares, if any, the Borrower shares of Series B Preferred Stock of such holder shall be assumed by and shall become preferred stock of such successor or any resulting company, having in respect of such company insofar as possible the same powers, preferences and relative, participating, optional or other Subsidiaryspecial rights (including the redemption rights provided by Sections 6, 7 and 8 hereof), and the assets qualifications, limitations or stock restrictions thereon, that the Series B Preferred Stock had immediately prior to such transaction, except that after such transaction each share of the Series B Preferred Stock shall be convertible, otherwise on the terms and conditions provided by Section 5 hereof, into the qualifying employer securities so receivable by a holder of the number of shares of Common Stock into which such shares of Series B Preferred Stock could have been converted immediately prior to such transaction if such holder of Common Stock failed to exercise any Subsidiary may be purchased rights of election to receive any kind or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale amount of stock, securities, cash or other disposition permitted by Section 6.2.7; and
property (b) so long as no Event of Default or Prepayment Event has occurred other than such qualifying employer securities and is continuing or would occur after giving effect theretoa cash payment, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Personif applicable, in each case so long as:
lieu of fractional shares) receivable upon such transaction (i) after giving effect theretoprovided that, if the Stockholders’ Equity kind or amount of the Borrower and its Subsidiaries is at least equal to 90% of qualifying employer securities receivable upon such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower transaction is not the surviving corporation:
(A) same for each non-electing share, then the surviving corporation kind and amount of qualifying employer securities receivable upon such transaction for each non-electing share shall have assumed in be the kind and amount so receivable per share by a writing, delivered plurality of the non-electing shares). The rights of the Series B Preferred Stock as preferred stock of such successor or resulting company shall successively be subject to adjustments pursuant to Section 9 hereof after any such transaction as nearly equivalent as practicable to the Administrative Agentadjustments provided for by such section prior to such transaction. The Company shall not consummate any such merger, consolidation or similar transaction unless all then outstanding shares of the Borrower’s obligations hereunder Series B Preferred Stock shall be assumed and under authorized by the other Loan Documents;successor or resulting company as aforesaid.
(B) In the surviving corporation event that the Company shall consummate any consolidation or merger or similar transaction, however named, pursuant to which the outstanding shares of Common Stock are by operation of law exchanged for or changed, reclassified or converted into other stock or securities or cash or any other property, or any combination thereof, other than any such consideration which is constituted solely of qualifying employer securities (as referred to in paragraph (A) of this Section 8) and cash payments, if applicable, in lieu of fractional shares, each outstanding share of Series B Preferred Stock shall, promptly upon without any action on the request part of the Administrative Agent Company or any Lenderholder thereof (but subject to paragraph (C) of this Section 8), supply be deemed converted by virtue of such documentation merger, consolidation or similar transaction immediately prior to such consummation into the number of shares of Common Stock into which such share of Series B Preferred Stock could have been converted at such time and other evidence each share of Series B Preferred Stock shall, by virtue of such transaction and on the same terms as is reasonably requested by apply to the Administrative Agent holders of Common Stock, be converted into or any Lender in order exchanged for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results aggregate amount of all necessary “know your customer” stock, securities, cash or other similar checks under all applicable laws property (payable in like kind) receivable by a holder of the number of shares of Common Stock into which such share of Series B 24 Preferred Stock could have been converted immediately prior to such transaction if such holder of Common Stock failed to exercise any rights of election as to the kind or amount of stock, securities, cash or other property receivable upon such transaction (provided that, if the kind or amount of stock, securities, cash or other property receivable upon such transaction is not the same for each non-electing share, then the kind and regulations; andamount of stock, securities, cash or other property receivable upon such transaction for each non- electing share shall be the kind and amount so receivable per share by a plurality of the non-electing shares).
(C) In the event the Company shall enter into any agreement providing for any consolidation or merger or similar transaction described in paragraph (B) of this Section 8, then the Company shall as soon as practicable after receiving notice from the Borrower of such merger, thereafter (and in any event no later than five Business Days after the delivery at least ten (10) business days before consummation of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate transaction) give notice of such Lender (a “Protesting Lender”) shall so notify the Borrower agreement and the Administrative Agent in writing. With respect material terms thereof to each Protesting Lender, the Borrower shall, effective on or before the date that holder of Series B Preferred Stock and each such surviving corporation holder shall have the right to borrow hereunderelect, notify by written notice to the Administrative Agent and such Protesting Lender that the Commitments Company, to receive, upon consummation of such Protesting Lender shall transaction (if and when such transaction is consummated), from the Company or the successor of the Company, in lieu of what would otherwise be terminated; provided that the result under paragraph (B) of this Section 8 (and in redemption and retirement of such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least share of Series B Preferred Stock, but without any premium), a cash payment equal to the aggregate outstanding principal amount payable in respect of such share of Series B Preferred Stock upon liquidation of the Advances owing Company pursuant to such Protesting LenderSection 4 hereof, together with (including an amount equal to all accumulated and unpaid dividends and accrued interest dividends thereon to the date fixed for redemption as provided by Section 4 hereof). No such notice of payment redemption shall be effective unless given to the Company prior to the close of business on the fifth business day prior to consummation of such principal amount and all other amounts payable transaction, unless the Company or the successor of the Company shall waive such prior notice, but any notice of redemption so given prior to such Protesting Lender under this Agreementtime may be withdrawn by notice of withdrawal given to the Company prior to the close of business on the fifth business day prior to consummation of such transaction.
Appears in 1 contract
Samples: Annual Report
Consolidation, Merger, etc. The Borrower will not, and will not permit If any consolidation or merger of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge the Corporation with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiarycorporation, or the Borrower or any sale of its Subsidiaries may purchase or otherwise acquire all or substantially all of its assets to another corporation (each an “Extraordinary Event”) shall be effected, then, as a condition of such Extraordinary Event, the assets Corporation shall cause lawful and adequate provision to be made whereby the registered holder of any Personthis Warrant shall thereafter have the right to purchase and receive, upon exercise hereof and the payment of the Exercise Price, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity lieu of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all Common Shares of the Borrower’s obligations hereunder Corporation immediately theretofore purchasable and under the other Loan Documents;
(B) the surviving corporation shall, promptly receivable upon the request exercise of this Warrant, such shares of stock, securities or property (including cash) as may be issued or payable with respect to or in exchange for a number of Common Shares of the Administrative Agent or any Lender, supply Corporation immediately theretofore purchasable and receivable upon the exercise of this Warrant had such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such mergerExtraordinary Event not taken place, and in any event no later such case appropriate provision shall be made with respect to the rights and interests of the holder of this Warrant to the end that the provisions hereof (including, without limitation, provisions for adjustments of the number of shares purchasable upon the exercise of this Warrant) shall thereafter be applicable, as nearly as may be, in relation to any shares of stock, securities or property thereafter deliverable upon the exercise hereof. The foregoing provisions shall similarly apply to successive Extraordinary Events. The Corporation shall not effect any such consolidation, merger or sale unless, prior to the consummation thereof, the successor corporation (if other than five Business Days after the delivery Corporation) resulting from such consolidation or merger or the corporation purchasing such assets shall assume by written instrument executed and mailed to the registered holder at the last address of such notice, for a surviving corporation that is organized under registered holder appearing on the laws of a jurisdiction other than books of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting LenderCorporation, the Borrower shall, effective on or before the date that such surviving corporation shall have the right obligation to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing deliver to such Protesting Lenderregistered holder such shares of stock, together securities or property as, in accordance with accrued interest thereon the foregoing provisions, such registered holder may be entitled to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementpurchase or receive.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will notNotwithstanding anything to the contrary contained in Sections 4.02, and will not permit any of its Subsidiaries to, liquidate 9.02 or dissolve, consolidate with, elsewhere in the Credit Agreement or merge into or with, any the other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and intoCredit Documents, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially parties hereto hereby agree that all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, Net Sale Proceeds received by the Stockholders’ Equity of the Borrower Corporation and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, Caesxxx Xxxxx Xxxe shall be applied promptly (and in any event no later than within five (5) Business Days Days, or such longer period as is necessary to comply with the redemption or prepayment provisions of the respective issue of Indebtedness being repaid) after the delivery receipt thereof by the Corporation or its respective Subsidiaries in the following order of such notice, for a surviving corporation that is organized under priority (in each case to the laws of a jurisdiction other than extent of the United States then remaining Net Sale Proceeds): (A) first (to the extent the amount of Net Sale Proceeds has not already been applied to reduce the outstanding Caesars Bonds), to redeem all of the then outstanding Caesars Bonds and to pay any penalty, premium, defeasance payment or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender other amount due in connection therewith (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lendercollectively, the Borrower shall"Caesars Bonds Redemption Amount") or, effective on or before if the date that such surviving corporation Caesars Bonds Redemption Amount shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal been paid prior to the aggregate outstanding consummation of the Caesxxx Xxxxx Xxxnsaction, then to prepay the principal amount of any Revolving Loans then outstanding under the Advances owing to such Protesting Lender, together with accrued interest thereon Credit Agreement in an amount up to the date of payment of such Caesars Bonds Redemption Amount, (B) second, to repay permanently the principal amount of any Tranche I IRN's then outstanding, (C) third, to repay permanently the principal amount of any Tranche II IRN's then outstanding, (D) fourth, to prepay the principal amount of any Revolving Loans then outstanding under the Credit Agreement, and all (E) fifth, to prepay the principal amount of other amounts payable to such Protesting Lender under this AgreementIndebtedness of the Corporation and its Wholly-Owned Subsidiaries then outstanding.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or otherwise enter into or consummate any Acquisition, except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other Wholly Owned Subsidiary (provided, however, that a Guarantor may only liquidate or dissolve into, or merge with and into, the Borrower or another Guarantor that is a Wholly Owned Subsidiary), and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Wholly Owned Subsidiary (provided, however, that the assets or (ii) stock of any Guarantor may only be purchased or otherwise acquired by the Borrower or another Guarantor); provided, further, that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary that is a Wholly Owned Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding shares of Capital Stock of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted maintain the collateral position of the Administrative Agent and the Secured Parties therein as contemplated by Section 6.2.7this Agreement; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, consummate a Permitted Acquisition or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any an acquisition described in clause (g) of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementSection 7.2.11.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries Consolidated Entities to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Subsidiary Consolidated Entity may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiaryConsolidated Entity (provided that a Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, the Borrower or another Subsidiary Guarantor), and the assets or stock Equity Interests of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary (provided that the assets or (ii) Equity Interests of any Subsidiary Guarantor may only be purchased or otherwise acquired by the Borrower or another Subsidiary Guarantor); provided that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Equity Interests (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7; andmaintain the collateral position of the Secured Parties therein;
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries Consolidated Entities may merge into any other Person, (to the extent permitted by clauses (e) or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any (g) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Equity Interests of any PersonPerson (or any division thereof), in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of or acquire such Stockholders’ Equity immediately prior theretoPerson by merger; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(Cc) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementpermitted by Section 7.2.11.
Appears in 1 contract
Samples: Credit Agreement (United Surgical Partners International Inc)
Consolidation, Merger, etc. The Borrower will notADJUSTMENTS FOR CONSOLIDATION, and will not permit any of its Subsidiaries toMERGER, liquidate or dissolveSALE OF ASSETS,REORGANIZATION, ETC. In case the Company after the date hereof (a) shall consolidate with, with or merge into or with, any other Person and shall not be the continuing or surviving corporation except:
of such consolidation or merger, or (ab) shall permit any other Person to consolidate with or merge into the Company and the Company shall be the continuing or surviving Person but, in connection with such Subsidiary may (i) liquidate consolidation or dissolve voluntarily, and may merge with and intomerger, the Borrower Common Shares shall be changed into or exchanged for stock or other securities of any other Person or cash or any other Subsidiaryproperty, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (iic) merge with and into another Person in connection with a sale shall transfer all or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any substantially all of its Subsidiaries may merge into properties or assets to any other Person, or any other Person may merge into the Borrower (d) shall effect a capital reorganization or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all reclassification of the assets Common Shares, then, and in the case of any Person, in each case so long as:
(i) after giving effect theretosuch transaction, the Stockholders’ Equity Holder of this Warrant shall be entitled to receive at and upon consummation of such transaction (but only upon payment of the Borrower and its Subsidiaries is aggregate Purchase Price in effect at least equal to 90% the time of such Stockholders’ Equity consummation for all Common Shares issuable upon such exercise immediately prior to such consummation), the highest amount of securities, cash or other property to which such Holder would actually have been entitled as a shareholder upon such consummation if such Holder had exercised this Warrant immediately prior thereto; and
(ii) in the case of PROVIDED that if a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation purchase, tender or exchange offer shall have assumed been made to and accepted by the holders of more than 50% of the outstanding Common Shares, and if the Holder so designates in a writing, delivered notice given to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective Company on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to immediately preceding the date of the consummation of such transaction, the Holder of this Warrant shall be entitled to receive at and upon consummation of such purchase, tender or exchange offer (but only upon payment of the aggregate Purchase Price in effect at the time of expiration of such principal purchase, tender or exchange offer) the highest amount of securities, cash or other property to which it would actually have been entitled as a shareholder if the Holder of this Warrant had exercised this Warrant prior to the expiration of such purchase, tender or exchange offer and all other amounts payable to accepted such Protesting Lender under this Agreementoffer.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, In case the Company after the date hereof (a) shall consolidate with, with or merge into or with, any other Person and shall not be the continuing or surviving corporation except:
of such consolidation or merger, or (ab) shall permit any other Person to consolidate with or merge into the Company and the Company shall be the continuing or surviving Person but, in connection with such Subsidiary may (i) liquidate consolidation or dissolve voluntarily, and may merge with and intomerger, the Borrower Common Stock or Other Securities of the Company shall be changed into or exchanged for stock or other securities of any other Person or cash or any other Subsidiaryproperty, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (iic) merge with and into another Person in connection with a sale shall transfer all or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any substantially all of its Subsidiaries may merge into properties or assets to any other Person, or any other Person may merge into the Borrower (d) shall effect a capital reorganization or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all reclassification of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity Common Stock or Other Securities of the Borrower Company (other than a capital reorganization or reclassification for which adjustment in the Purchase Price and its Subsidiaries the number of shares of Common Stock obtainable upon exercise of this Warrant is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) provided in Section 3.4), then, and in the case of each such transaction, proper provision shall be made so that, upon the basis and the terms and in the manner provided in this Warrant, the Holder of this Warrant, upon the exercise hereof for Common Stock at any time after the consummation of such transaction, shall be entitled to receive (at the aggregate Purchase Price in effect at the time of such consummation for all Common Stock or Other Securities issuable upon such exercise immediately prior to such consummation), in lieu of the Common Stock or Other Securities issuable upon such exercise prior to such consummation, the highest amount of securities, cash or other property to which such Holder would actually have been entitled as a merger involving shareholder upon such consummation if such Holder had exercised this Warrant for Common Stock immediately prior thereto, subject to adjustments (subsequent to such consummation) as nearly equivalent as possible to the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation adjustments provided for in Sections 3 through 5, provided that if a purchase, tender or exchange offer shall have assumed been made to and accepted by the holders of more than 50% of the outstanding shares of Common Stock, and if the Holder so designates in a writing, delivered notice given to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective Company on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to immediately preceding the date of the consummation of such transaction, the Holder of this Warrant shall be entitled to receive the highest amount of securities, cash or other property to which it would actually have been entitled as a shareholder if the Holder of this Warrant had exercised this Warrant, including the payment of the Purchase Price in accordance with Section 2.1(b) hereof, prior to the expiration of such principal amount purchase, tender or exchange offer and all other amounts payable accepted such offer, subject to adjustments (from and after the consummation of such Protesting Lender under this Agreementpurchase, tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in Sections 3 through 5.
Appears in 1 contract
Samples: Warrant Agreement (DSW Inc.)
Consolidation, Merger, etc. The U.S. Borrower will not, and will not permit any of its Subsidiaries to, wind up, liquidate or dissolvedissolve its affairs or enter into any transaction of merger or consolidation, consolidate withand the U.S. Borrower will not sell, convey or merge into transfer or with, any other corporation exceptotherwise dispose of all or substantially all of its property and assets (as an entirety or substantially as an entirety in one transaction or a series of related transactions) except that:
(ai) any such Subsidiary of the U.S. Borrower may engage in a merger constituting an Asset Sale or an asset acquisition otherwise permitted under this Agreement;
(iii) liquidate or dissolve voluntarily, and any Subsidiary of the U.S. Borrower that is not a Guarantor may merge be merged with and into, into the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the U.S. Borrower or any other Subsidiary of the U.S. Borrower that is not a Guarantor so long as in the case of any merger involving the U.S. Borrower, the U.S. Borrower is the surviving Person;
(iii) Subsidiaries of the U.S. Borrower which are Guarantors may consolidate or (ii) merge with and or into (whether or not such Guarantor is the surviving Person) another Person in connection (other than the U.S. Borrower or another Guarantor), so long as (x) the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) assumes all the obligations of such Guarantor under the Subsidiaries Guaranty and otherwise complies with a sale the applicable requirements of Section 10.15; provided, however, that for the purpose of this clause (x), the requirements of Section 10.15 shall have been satisfied upon the consummation of such consolidation or other disposition merger without regard to any additional time otherwise permitted by under Section 6.2.710.15(c); and (y) immediately before and immediately after giving effect to such transaction, no Default or Event of Default shall have occurred or be continuing; and
(biv) so long as no Event Subsidiaries of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the U.S. Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase which are not Guarantors or otherwise acquire all have no material assets or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower material liabilities may be dissolved and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementliquidated.
Appears in 1 contract
Samples: Credit Agreement (Host Marriott L P)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) Pay Tech may liquidate or dissolve, and any such other Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower (so long as the Borrower is the surviving corporation) or any other SubsidiarySubsidiary (provided, however, that a Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, the Borrower or another Subsidiary Guarantor), and the assets or stock Capital Securities of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary (provided, however, that the assets or Capital Securities of any Subsidiary Guarantor may only be purchased or otherwise acquired by the Borrower or another Subsidiary Guarantor unless such assets are of the type described in clause (a) or (iic) of Section 7.2.11); provided, further, that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Securities (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the reasonable opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7maintain the collateral position of the Secured Parties therein; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (g) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Capital Securities of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof), supply or acquire such documentation and other evidence as is reasonably requested Person by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) any such the Borrower or a Wholly Owned Subsidiary may merge with another Person if (i) (A) Borrower or such Subsidiary is the continuing Person following such merger or (B) in the case of a merger by the Borrower, the Person (if other than the Borrower) formed by such merger (including a consolidation effected by a sale or transfer of all or substantially all of the assets of a Person) is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia and expressly assumes the obligations of the Borrower under this Agreement, (ii) such merger or consolidation is otherwise permitted under the Senior Note Indentures, (iii) no Default (other than a Nonmaterial Subsidiary Default) has occurred and is continuing or would occur after giving effect thereto and (iv) after giving effect thereto, (x) the Rating by S&P shall be BB- or higher or the Rating by Xxxxx'x shall be Ba3 or higher; provided that if the Ratings by the Rating Agencies shall be at different levels, the Rating by the Rating Agency with the lower of such Ratings shall be no more than one level below the Rating of the Rating Agency with the higher of such Ratings;
(b) any Subsidiary may liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary; provided, however, that if any Subsidiary that is a Pledged Entity shall merge with any other Subsidiary that is not a Pledged Entity, such Pledged Entity shall be the continuing Person following such merger; and provided, further, that if any Subsidiary that is a Pledged Entity shall liquidate or dissolve voluntarily into, or merge into, the Borrower or any other Subsidiary, or the assets or stock of any such Subsidiary are purchased or otherwise acquired by the Borrower or any other Subsidiary, the assets of such Subsidiary shall be transferred (whether by means of merger or otherwise)
(i) to the Borrower (and pledged by the Borrower as collateral security for the Obligations) or (ii) merge with and into to another Person in connection with Subsidiary that is a sale or other disposition permitted by Section 6.2.7; andPledged Entity;
(bc) so long as no Event of Default or Prepayment Event (other than a Nonmaterial Subsidiary Default) has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or stock of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower Person if permitted by Section 8.2.5 and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretoSection 8.2.7; and
(iid) in the case of a merger involving the Borrower where the Borrower Subsidiary may consolidate with, or merge into or with, another Person that is not the surviving corporation:
(A) Borrower or a Subsidiary of the surviving corporation shall have assumed in a writing, delivered Borrower to the Administrative Agent, all of the Borrower’s obligations hereunder and extent otherwise permitted under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementSection 8.2.10.
Appears in 1 contract
Samples: Credit Agreement (Calpine Corp)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) the Borrower or a Wholly Owned Subsidiary may merge with another Person if (i) (A) Borrower or such Subsidiary is the continuing Person following such merger or (B) in the case of a merger by the Borrower, the Person (if other than the Borrower) formed by such merger (including a consolidation effected by a sale or transfer of all or substantially all of the assets of a Person) is a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia and expressly assumes the obligations of the Borrower under this Agreement, (ii) such merger or consolidation is otherwise permitted under the Senior Note Indentures, (iii) no Default (other than a Nonmaterial Subsidiary Default) has occurred and is continuing or would occur after giving effect thereto and (iv) after giving effect thereto, (x) the S&P Rating of the Borrower shall not be reduced below BB- and Xxxxx'x Rating of the Borrower shall not be reduced below Ba3 or, (y) if the Borrower shall not be the survivor, the S&P Rating of such survivor shall not be below BBB- and Xxxxx'x Rating of such survivor shall not be below Baa3;
(b) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary; provided, however, in no event may a Subsidiary or (ii) that holds a direct interest in a power generating facility merge with and into another Person any other Subsidiary that holds a direct or indirect interest in connection with a sale any other power generating facility or other disposition permitted by Section 6.2.7; andbusiness;
(bc) so long as no Event of Default or Prepayment Event (other than a Nonmaterial Subsidiary Default) has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may purchase all or substantially all of the assets or stock of any Person if permitted (without duplication) by Section 8.2.5 and Section 8.2.7; and
(d) a Restricted Subsidiary may consolidate with, or merge into any other Personor with, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Personof, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementanother Restricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Calpine Corp)
Consolidation, Merger, etc. The Borrower will not, and will not permit In case Baan shall be a party to any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
transaction providing for (a) any such Subsidiary may (i) liquidate acquisition of Baan by means of merger or dissolve voluntarilyother form of corporate reorganization in which outstanding shares of Baan are exchanged for securities or other consideration issued, and may merge with and intoor caused to be issued, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower acquiring corporation (the "Acquirer") or any other Subsidiary its subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event a sale of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of Baan (on a consolidated basis) or (c) any Personother transaction or series of related transactions by Baan in which in excess of 50% of Baan's voting power is transferred to a single entity or group acting in concert (each of the foregoing being referred to as a "Combination"), Fletxxxx, xx its sole option, may choose to exercise before the Combination is closed (the "Combination Closing") its rights to (1) receive all the Initial Common Shares not previously issued to Fletxxxx, (0) receive all the Additional Common Shares for which Fletxxxx xxx previously paid the applicable Additional Issuance Price and (3) subject to the second succeeding sentence, exercise the Fletxxxx Xxxhts (in each case so long as:
whole or in part) and receive Common Shares therefor. Baan shall provide Fletxxxx xxxh written notice of any proposed Combination as soon as the existence of a proposed Combination is made public by any person (the "Combination Notice"). In the event that a Combination Notice is issued during the first 9 months after the Initial Closing Date in connection with a potential Combination for which the accounting treatment is pooling of interest accounting, and Fletxxxx xxxreafter delivers a Fletxxxx Xxxice to exercise a Fletxxxx Xxxht during such 9 month period, then Baan shall (i) after giving effect theretofirst use its best efforts to obtain the consent of its regular independent auditors that such action by Fletxxxx xxxld not cause such Combination to not be eligible for pooling of interest accounting, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) if such consent is not obtained, then Baan and its independent auditors shall request the informal opinion of the staff of the Securities and Exchange Commission (the "SEC") that such action would not prevent pooling of interest accounting treatment, and (iii) in the case event the SEC does not so consent, then Baan and Fletxxxx xxxll in good faith work to develop an acceptable alternative resolution that does not prevent pooling of a merger involving interest accounting treatment; provided, that in no event shall any such resolution be permitted or required that prevents pooling of interest accounting treatment for such Combination and provided further that Fletxxxx xxx the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered right to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the rescind its delivery of such noticeFletxxxx Xxxice in whole or in part at any time in the event that (x) the Rights Closing relating to such Fletxxxx Xxxice does not take place pursuant to the schedule set forth in Section 1.c. or (y) the Combination Closing does not occur, for a surviving corporation that is organized under and Fletxxxx xxxreafter has the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberiafurther right, any Lender that may not legally lend toat its discretion, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received submit one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal new Fletxxxx Xxxices to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under extent otherwise permissible by this Agreement. Baan Rights may not be exercised following a Combination Closing.
Appears in 1 contract
Samples: Share Rights Agreement (Baan Co N V)
Consolidation, Merger, etc. The Neither Borrower will, nor will not, and will not it permit any of its Subsidiaries Consolidated Entities to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Subsidiary Consolidated Entity may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the US Borrower or any other Subsidiaryof its Consolidated Entities (provided that a Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, the US Borrower or another Subsidiary Guarantor), and the assets or stock Equity Interests of any Subsidiary may be purchased or otherwise acquired by the US Borrower or any other Subsidiary (provided that the assets or (ii) Equity Interests of any Subsidiary Guarantor may only be purchased or otherwise acquired by the US Borrower or another Subsidiary Guarantor); provided that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Equity Interests (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7; andmaintain the collateral position of the Secured Parties therein;
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the either Borrower or any of its Subsidiaries Consolidated Entities may merge into any other Person, (to the extent permitted by clause (e) of Section 8.2.5 or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may by Section 8.2.6) purchase or otherwise acquire all or substantially all of the assets or Equity Interests of any PersonPerson (or any division thereof), in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of or acquire such Stockholders’ Equity immediately prior theretoPerson by merger; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(Cc) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementpermitted by Section 8.2.12.
Appears in 1 contract
Samples: Credit Agreement (United Surgical Partners International Inc)
Consolidation, Merger, etc. The Borrower will not(A) In the event that the Company shall consummate any consolidation or merger or similar transaction, however named, pursuant to which the outstanding shares of Common Stock are by operation of law exchanged solely for or changed, reclassified or converted solely into stock of any successor or resulting company (including the Company) that constitutes "qualifying employer securities" with respect to a holder of Series B Preferred Stock within the meaning of Section 409(e) of the Internal Revenue Code of 1986, as amended, and will not permit any Section 407(c)(5) of its Subsidiaries tothe Employee Retirement Income Security Act of 1974, liquidate or dissolve, consolidate withas amended, or merge any successor provisions of law, and, if applicable, for a cash payment in lieu of fractional shares, if any, the shares of Series B Preferred Stock of such holder shall be assumed by and shall become preferred stock of such successor or resulting company, having in respect of such company insofar as possible the same powers, preferences and relative, participating, optional or other special rights (including the redemption rights provided by Sections 6, 7 and 8 hereof), and the qualifications, limitations or restrictions thereon, that the Series B Preferred Stock had immediately prior to such transaction, except that after such transaction each share of the Series B Preferred Stock shall be convertible, otherwise on the terms and conditions provided by Section 5 hereof, into the qualifying employer securities so receivable by a holder of the number of shares of Common Stock into which such shares of Series B Preferred Stock could have been converted immediately prior to such transaction if such holder of Common Stock failed to exercise any rights of election to receive any kind or withamount of stock, securities, cash or other property (other than such qualifying employer securities and a cash payment, if applicable, in lieu of fractional shares) receivable upon such transaction (provided that, if the kind or amount of qualifying employer securities receivable upon such transaction is not the same for each non-electing share, then the kind and amount of qualifying employer securities receivable upon such transaction for each non-electing share shall be the kind and amount so receivable per share by a plurality of the non-electing shares). The rights of the Series B Preferred Stock as preferred stock of such successor or resulting company shall successively be subject to adjustments pursuant to Section 9 hereof after any other corporation except:such transaction as nearly equivalent as practicable to the adjustments provided for by such section prior to such transaction. The Company shall not consummate any such merger, consolidation or similar transaction unless all then outstanding shares of the Series B Preferred Stock shall be assumed and authorized by the successor or resulting company as aforesaid.
(aB) In the event that the Company shall consummate any such Subsidiary may (i) liquidate consolidation or dissolve voluntarilymerger or similar transaction, and may merge with and intohowever named, pursuant to which the Borrower outstanding shares of Common Stock are by operation of law exchanged for or changed, reclassified or converted into other stock or securities or cash or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Personproperty, or any combination thereof, other Person may merge into the Borrower or than any such Subsidiary, or the Borrower or any consideration which is constituted solely of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, qualifying employer securities (as referred to in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:paragraph
(A) of this Section 8) and cash payments, if applicable, in lieu of fractional shares, each outstanding share of Series B Preferred Stock shall, without any action on the surviving corporation shall part of the Company or any holder thereof (but subject to paragraph (C) of this Section 8), be deemed converted by virtue of such merger, consolidation or similar transaction immediately prior to such consummation into the number of shares of Common Stock into which such share of Series B Preferred Stock could have assumed in a writingbeen converted at such time and each share of Series B Preferred Stock shall, delivered by virtue of such transaction and on the same terms as apply to the Administrative Agentholders of Common Stock, all be converted into or exchanged for the aggregate amount of stock, securities, cash or other property (payable in like kind) receivable by a holder of the Borrower’s obligations hereunder number of shares of Common Stock into which such share of Series B 69 Preferred Stock could have been converted immediately prior to such transaction if such holder of Common Stock failed to exercise any rights of election as to the kind or amount of stock, securities, cash or other property receivable upon such transaction (provided that, if the kind or amount of stock, securities, cash or other property receivable upon such transaction is not the same for each non-electing share, then the kind and under amount of stock, securities, cash or other property receivable upon such transaction for each non- electing share shall be the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request kind and amount so receivable per share by a plurality of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; andnon-electing shares).
(C) In the event the Company shall enter into any agreement providing for any consolidation or merger or similar transaction described in paragraph (B) of this Section 8, then the Company shall as soon as practicable after receiving notice from the Borrower of such merger, thereafter (and in any event no later than five Business Days after the delivery at least ten (10) business days before consummation of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate transaction) give notice of such Lender (a “Protesting Lender”) shall so notify the Borrower agreement and the Administrative Agent in writing. With respect material terms thereof to each Protesting Lender, the Borrower shall, effective on or before the date that holder of Series B Preferred Stock and each such surviving corporation holder shall have the right to borrow hereunderelect, notify by written notice to the Administrative Agent and such Protesting Lender that the Commitments Company, to receive, upon consummation of such Protesting Lender shall transaction (if and when such transaction is consummated), from the Company or the successor of the Company, in lieu of what would otherwise be terminated; provided that the result under paragraph (B) of this Section 8 (and in redemption and retirement of such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least share of Series B Preferred Stock, but without any premium), a cash payment equal to the aggregate outstanding principal amount payable in respect of such share of Series B Preferred Stock upon liquidation of the Advances owing Company pursuant to such Protesting LenderSection 4 hereof, together with (including an amount equal to all accumulated and unpaid dividends and accrued interest dividends thereon to the date fixed for redemption as provided by Section 4 hereof). No such notice of payment redemption shall be effective unless given to the Company prior to the close of business on the fifth business day prior to consummation of such principal amount and all other amounts payable transaction, unless the Company or the successor of the Company shall waive such prior notice, but any notice of redemption so given prior to such Protesting Lender under this Agreementtime may be withdrawn by notice of withdrawal given to the Company prior to the close of business on the fifth business day prior to consummation of such transaction.
Appears in 1 contract
Samples: Annual Report
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate (i) enter into any transaction of merger or dissolve, consolidate withconsolidation or amalgamation, or merge into liquidate, wind up or withdissolve itself (or suffer any liquidation or dissolution) (except for the PXP Spin-off), (ii) acquire any business or Property from, or Capital Stock of, or be a party to any acquisition of, any Person except for purchases of inventory and other corporation exceptProperty to be sold or used in the ordinary course of business and Investments permitted under Section 7.2.5, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with or into (x) the Borrower if the Borrower shall be the continuing or surviving corporation or (y) any other such Subsidiary, provided that if any such transaction shall be between a Subsidiary and a wholly-owned Subsidiary, the wholly-owned Subsidiary shall be the continuing or surviving corporation and provided, further, that if any such transaction shall be between a Subsidiary Guarantor and a Subsidiary not a Subsidiary Guarantor and such Subsidiary Guarantor is not the continuing or surviving entity, then the continuing or surviving entity shall have assumed all of such Subsidiary Guarantor hereunder;
(b) any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its Property (iupon voluntary liquidation or otherwise) liquidate to the Borrower or dissolve voluntarilya wholly-owned Subsidiary of the Borrower, and may merge with and intoprovided that if any such sale is by a Subsidiary Guarantor to a Subsidiary of the Borrower not a Subsidiary Guarantor, then such Subsidiary shall have assumed all of the obligations of such Subsidiary Guarantor under its Subsidiary Guaranty; and
(c) the Borrower or any other Subsidiary, and the assets or stock Subsidiary of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or consolidate with any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
if (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(iix) in the case of a merger involving or consolidation of the Borrower where Borrower, the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed and, in a writingany other case, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request is a wholly-owned Subsidiary of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow (y) after giving effect thereto no Default would exist hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not(i) Subject to the provisions of -------------------------- Subsection (ii) below of this Section 4.1(j), and will not permit any in case of its Subsidiaries to, liquidate or dissolve, consolidate the consolidation of the Company with, or merge into merger of the Company with or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, or of the Borrower or any other Subsidiary, and the assets or stock sale of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the properties and assets of the Company to, any Person, and in each case so long as:
(i) after giving effect theretoconnection therewith consideration is payable to holders of Common Shares in exchange therefor, the Stockholders’ Equity Warrants shall remain subject to the terms and conditions set forth in this Agreement and each Warrant shall, after such consolidation, merger or sale, entitle the Holder to receive upon exercise thereof the number of shares in the capital stock or other securities or property (including cash) of or from the Person resulting from such consolidation or surviving such merger or to which such sale shall be made or of the Borrower and its Subsidiaries is at least equal to 90% parent of such Stockholders’ Equity Person, as the case may be, that would have been distributable or payable on account of the Common Shares if such Holder's Warrants had been exercised immediately prior theretoto such merger, consolidation or sale (or, if applicable, the record date therefor); andand in any such case the provisions of this Agreement with respect to the rights and interests thereafter of the Holders of Warrants shall be appropriately adjusted by the Board in good faith so as to be applicable, as nearly as may reasonably be, to any shares, other securities or any property thereafter deliverable on the exercise of the Warrants.
(ii) Notwithstanding the foregoing, (x) if the Company merges or consolidates with, or sells all or substantially all of its property and assets to, another Person (other than an Affiliate of the Company) and consideration is payable to holders of Common Shares in exchange for their Common Shares in connection with such merger, consolidation or sale which consists solely of cash, or (y) in the event of the dissolution, liquidation or winding up of the Company, then the Holders of Warrants shall be entitled to receive distributions on the date of such event on an equal basis with holders of Common Shares (or other securities issuable upon exercise of the Warrants) as if the Warrants had been exercised immediately prior to such event, less the Exercise Price. Upon receipt of such payment, if any, the rights of a Holder shall terminate and cease and such Holder's Warrants shall expire. In case of any such merger, consolidation or sale of assets, the surviving or acquiring Person and, in the event of any dissolution, liquidation or winding up of the Company, the Company shall deposit promptly with the Warrant Agent the funds, if any, necessary to pay the Holders of the Warrants. After receipt of such deposit from such Person or the Company and after receipt of surrendered Warrant Certificates, the Warrant Agent shall make payment by delivering a check in such amount as is appropriate (or, in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writingconsideration other than cash, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the such other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence consideration as is reasonably requested appropriate) to such Person or Persons as it may be directed in writing by the Administrative Agent or any Lender in order for the Administrative Agent or Holder surrendering such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementWarrants.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit In case the Corporation shall be a party to any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may transaction providing for (i) liquidate any acquisition of the Corporation by means of merger or dissolve voluntarilyother form of corporate reorganization in which outstanding shares of the Corporation are exchanged for securities or other consideration issued, and may merge with and intoor caused to be issued, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower acquiring corporation or any other Subsidiary its subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of the Corporation or (iii) any Personother transaction or series of related transactions by the Corporation in which in excess of 50% of the Corporation's voting power is transferred to a single entity or group acting in concert (each of the foregoing being referred to as a "Transaction"), each share of Series A-1 Preferred Stock which is not converted by the holder into the right to receive Common Stock of the Corporation prior to such Transaction shall thereafter be exchangeable at the election of the holder of the Series A-1 Preferred Stock for an equal number of shares of preferred stock of the Surviving Entity (the "Similar Stock"), which preferred stock shall have terms substantially identical to the terms provided in each case so long as:
this Certificate of Designation, including without limitation, rights specified in Sections 2 and 3 hereof and be convertible, at the holder's option, into shares of any class of publicly traded common stock of the Surviving Entity. For purposes hereof, "Surviving Entity" shall mean an acquiror, purchaser or transferee contemplated by clauses (i) after giving effect thereto), the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in and (iii), respectively, of the immediately preceding sentence. The Corporation shall not be a party to any Transaction unless the terms of such Transaction are consistent with the provisions of this Section 9 and it shall not consent or agree to the occurrence of any Transaction until the Corporation has entered into an agreement with the successor or purchasing entity, as the case may be, for the benefit of a merger involving the Borrower where holders of the Borrower is not Series A-1 Preferred Stock which will contain provisions ensuring the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered benefits contemplated by this Section 9 to the Administrative Agent, all holders of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request Series A-1 Preferred Stock which remains outstanding after such Transaction. The provisions of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender this Section 9 shall apply similarly to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementsuccessive Transactions.
Appears in 1 contract
Samples: Exchange Agreement (Informix Corp)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower Borrowers will not, and will not permit any of its their respective Subsidiaries toto Merge, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary (other than Receivables Co.) may (i) liquidate or dissolve voluntarily, and may merge Merge with and into, the U.S. Borrower or any other SubsidiarySubsidiary (other than Receivables Co. and provided, however, that a Subsidiary Guarantor may only Merge with and into, the U.S. Borrower or another Subsidiary Guarantor), and the assets or stock Capital Securities of any Subsidiary may be purchased or otherwise acquired by the U.S. Borrower or any other Subsidiary (provided, however, that the assets or (ii) merge Capital Securities of any Subsidiary Guarantor may only be purchased or otherwise acquired by the U.S. Borrower or another Subsidiary Guarantor); provided, further, that in no event shall any Pledged Subsidiary Merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Securities (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such Merger in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7; maintain the collateral position of the Secured Parties therein, and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the U.S. Borrower or any of its Subsidiaries Subsidiaries, other than Receivables Co., may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (i) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Capital Securities of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof), supply or acquire such documentation and other evidence as is reasonably requested Person by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementMerger.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower Each of Holdings, Intermediate Holdings and the Borrowers will not, and will not permit any of its the Restricted Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Restricted Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower Company or any other SubsidiaryRestricted Subsidiary (provided, however, that a Domestic Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, the Company or another Domestic Subsidiary Guarantor), and the assets or stock Capital Stock of any Subsidiary may be purchased or otherwise acquired by the Borrower Company or any other Restricted Subsidiary (provided, however, that the assets or (ii) Capital Stock of any Domestic Subsidiary Guarantor may only be purchased or otherwise acquired by the Company or another Domestic Subsidiary Guarantor); provided, further, that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary (other than another Subsidiary the Capital Stock of which is pledged to the Administrative Agent for the benefit of the same Secured Parties to which the Capital Stock of such Pledged Subsidiary are pledged) unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Stock (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Agents and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Agents to create, perfect or other disposition permitted by Section 6.2.7maintain the collateral position of the Secured Parties therein; and
(b) so long as no Event of Specified Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower Company or any of its Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (g) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Capital Stock of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof), supply or acquire such documentation and other evidence as is reasonably requested Person by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Each Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or otherwise enter into or consummate any Business Acquisition not constituting an Investment, except:
(a) any such Subsidiary may (i) any Domestic Subsidiary (other than a Subsidiary Borrower) may liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Parent or any Wholly Owned Subsidiary of the Parent that is a Domestic Subsidiary, and any Foreign Subsidiary may liquidate or dissolve voluntarily into, and may merge with and into, any Wholly Owned Subsidiary of the Parent that is a Foreign Subsidiary or a Domestic Subsidiary (so long as, in the case of a Domestic Subsidiary, such Domestic Subsidiary is a parent of such Foreign Subsidiary and such transaction will not result in any material increase in the liabilities of such Domestic Subsidiary); provided that any Subsidiary Guarantor may only liquidate or dissolve voluntarily into, and may only merge with and into, a Borrower or any other SubsidiarySubsidiary Guarantor that is a Wholly Owned Subsidiary of the Parent, and and
(ii) the assets or stock of any Domestic Subsidiary may be purchased or otherwise acquired by the Parent or any Wholly Owned Subsidiary of the Parent that is a Domestic Subsidiary, and the assets of any Foreign Subsidiary may be purchased or otherwise acquired by any Wholly Owned Subsidiary of the Parent that is a Foreign Subsidiary; provided that (A) the assets of any Subsidiary Guarantor to be purchased or otherwise acquired pursuant to the preceding exception may only be so purchased or otherwise acquired by a Borrower or any other another Subsidiary or Guarantor that is a Wholly Owned Subsidiary of the Parent and (iiB) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all substantial part of the assets of any PersonSubsidiary Borrower may be purchased or otherwise acquired pursuant to the preceding exception (it being understood and agreed that (1) the transfer by Thrifty to Operations pursuant to the Corporate Reorganization of (x) assets utilized in the operation of its (or any of its Subsidiary's) "Thrifty" rental locations, (y) its rights and obligations under its vehicle lease agreements with franchisees and (z) any assets relating to the foregoing (including assets utilized in each case so long as:
Thrifty's corporate headquarters) and (i2) after giving effect thereto, the Stockholders’ Equity transfer by Operations to New Dollar pursuant to the Corporate Reorganization of the Borrower trademarks relating to "Dollar" and of its Subsidiaries is at least equal rights and obligations under its franchise agreements with franchisees (and the subsequent transfer by Operations to 90% the Parent pursuant to the Corporate Reorganization of such Stockholders’ Equity immediately prior theretothe Capital Stock of New Dollar) are each permitted hereunder); and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Samples: Amendment Agreement (Dollar Thrifty Automotive Group Inc)
Consolidation, Merger, etc. The Borrower Company will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Personcorporation, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
Person (ior of any division thereof) after giving effect thereto, the Stockholders’ Equity other than (a) any such transaction among or between Subsidiaries of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
Company as long as the surviving Person (ii) in the case of a merger liquidation, merger, dissolution or consolidation) or the acquiring Person (in the case of an acquisition) is a wholly-owned Subsidiary of the Company (and if as a result thereof any such Subsidiary which will cease to exist is a Designated Subsidiary, the obligations of such Subsidiary shall be assumed by a Subsidiary which is a Designated Subsidiary) or (b) any such transaction involving the Borrower where Company if the Borrower Company is not the surviving corporation:
, and provided that both before and after giving effect to any such transaction (A) whether involving the surviving corporation shall have assumed in a writingCompany or any of its Subsidiaries), delivered no Default has occurred and is continuing and the Company continues to the Administrative Agent, meet all of the Borrower’s its obligations hereunder under this Agreement and under the other Loan Documents;
. Notwithstanding the foregoing, the Company will not and will not permit any of its Subsidiaries to consummate any Acquisition unless (Bi) no Default or Event of Default shall have occurred and be continuing or would occur or exist upon consummation of the Acquisition, (ii) such Acquisition is of a business operation engaged in the same or a substantially similar line of business as that engaged in by the Company or any of its Subsidiaries on the date of the Acquisition, (iii) the surviving corporation shallprior effective written consent or approval to such Acquisition by the board of directors or equivalent governing body of the acquiree is obtained, promptly upon (iv) not less than 30 days prior to the request effective date of any Acquisition, the Company delivers to the Administrative Agent a certificate of the chief financial Authorized Corporate Officer of the Company certifying that after giving effect to such Acquisition the Company’s Consolidated Total Debt to EBITDA Ratio as of the end of the Fiscal Quarter in which the Acquisition is effectuated will be at least 0.25 less than that required by Section 6.2.2(b), and (v) with respect to any Acquisition in which the aggregate consideration to be paid (including the assumption of liabilities) by the Company or any Lenderof its Subsidiaries equals or exceeds $20,000,000, supply such documentation and other evidence as is reasonably requested by the Company delivers to the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving prior written notice from the Borrower of such merger, and Acquisition in any event no later than five Business Days after the delivery form of Exhibit K hereto at least 30 days prior to the effective date of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementAcquisition.
Appears in 1 contract
Samples: Credit Agreement (Andrew Corp)
Consolidation, Merger, etc. The Parent and the Borrower will not, and will not permit any of its their respective Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiarySubsidiary (provided, however, that a Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, the Borrower or another Subsidiary Guarantor), and the assets or stock Capital Securities of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary (provided, however, that the assets or (ii) Capital Securities of any Subsidiary Guarantor may only be purchased or otherwise acquired by the Borrower or another Subsidiary Guarantor); provided further, that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Securities (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7maintain the collateral position of the Secured Parties therein; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (g) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Capital Securities of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof), supply or acquire such documentation and other evidence as is reasonably requested Person by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:Trust; Disposition of Trust Assets.
(a) any such Subsidiary may (i) liquidate COLT shall not consolidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long asunless:
(i) the Person (if other than COLT) formed by or surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any State and be a U.S. Person, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the COLT Indenture Trustee, in form satisfactory to the COLT Indenture Trustee, the due and timely payment of the principal of and interest on all COLT 2007-SN1 Secured Notes and the performance or observance of every agreement and covenant of this COLT Indenture on the part of COLT to be performed or observed, all as provided herein;
(ii) immediately after giving effect theretoto such merger or consolidation, no Default or Event of Default shall have occurred and be continuing;
(iii) the Stockholders’ Equity of Approval Condition shall have been satisfied with respect to such transaction and such Person;
(iv) any action as is necessary to maintain the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretoLien created by this COLT Indenture in the COLT 2007-SN1 Collateral shall have been taken; and
(iiv) in COLT shall have delivered to the case COLT Indenture Trustee an Officer's Certificate and an Opinion of a merger involving Counsel addressed to COLT and the Borrower where the Borrower is not the surviving corporationCOLT Indenture Trustee, each stating:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder that such consolidation or merger and under the other Loan Documentssuch supplemental indenture comply with this Section 3.10;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent that such consolidation or merger and such supplemental indenture shall have no material adverse tax consequences to COLT or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulationsCOLT 2007-SN1 Secured Noteholder; and
(C) that all conditions precedent herein provided for in this Section 3.10 have been complied with, which shall include any filing required by the Exchange Act.
(b) Except as soon as practicable after receiving notice from otherwise expressly permitted by this COLT Indenture or any other COLT 2007-SN1 Basic Documents, COLT shall not sell, convey, exchange, transfer or otherwise dispose of any of the Borrower properties or assets included in the COLT 0000-XX0 Xxxxx Xxxxxx to any Person, unless:
(i) the Person that acquires such properties or assets of such merger, COLT (A) shall be a United States citizen or a Person organized and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized existing under the laws of a jurisdiction other than of the United States of America or any State and be a political subdivision thereof U.S. Person and (B) by an indenture supplemental hereto, executed and delivered to the COLT Indenture Trustee, in form satisfactory to the COLT Indenture Trustee:
(A) expressly assumes the due and punctual payment of the principal of and interest on all COLT 2007-SN1 Secured Notes, and the performance or Liberiaobservance of every agreement and covenant of this COLT Indenture on the part of COLT to be performed or observed, all as provided herein;
(B) expressly agrees that all right, title and interest so sold, conveyed, exchanged, transferred or otherwise disposed of shall be subject and subordinate to the rights of COLT 2007-SN1 Secured Noteholders;
(C) unless otherwise provided in such supplemental indenture, expressly agrees to indemnify, defend and hold harmless COLT against and from any Lender loss, liability or expense arising under or related to this COLT Indenture and the COLT 2007-SN1 Secured Notes; and
(D) expressly agrees that may not legally lend tosuch Person (or if a group of Persons, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”then one specified Person) shall so notify make all filings with the Borrower Commission (and any other appropriate Person) required by the Administrative Agent Exchange Act in writing. With connection with the COLT 2007-SN1 Secured Notes.
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Approval Condition shall have been satisfied with respect to each Protesting Lender, such transaction and such Person;
(iv) any action as is necessary to maintain the Borrower shall, effective on or before the date that such surviving corporation Lien created by this COLT Indenture shall have been taken; and
(v) COLT shall have delivered to the right COLT Indenture Trustee an Officer's Certificate and an Opinion of Counsel addressed to borrow hereunderCOLT, notify the Administrative Agent each stating that:
(A) such sale, conveyance, exchange, transfer or disposition and such Protesting Lender that supplemental indenture comply with this Section 3.10;
(B) such sale, conveyance, exchange, transfer or disposition and such supplemental indenture have no material adverse tax consequence to COLT or to any COLT 2007-SN1 Secured Noteholder; and
(C) all conditions precedent herein provided for in this Section 3.10 have been complied with, which shall include any filing required by the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementExchange Act.
Appears in 1 contract
Samples: Indenture (Capital Auto Receivables Asset Trust 2007-Sn1)
Consolidation, Merger, etc. The Borrower will not, and -------------------------- will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Personcorporation, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any PersonPerson (or of any division thereof) except that (i) TSAT may merge with and into the Borrower pursuant to the TSAT Merger and on terms and conditions satisfactory to a Lenders holding a majority of the outstanding Loans and Commitments, (ii) the transactions contemplated by the Restructuring Transaction may be made in each case so long as:accordance with the terms of the Restructuring Agreement and (iii) any Restricted Subsidiary may liquidate or dissolve voluntarily into, and may merge with and into, the Borrower or (subject to clauses (a) and (b)), any other Collateral Subsidiary; ----------- --- provided, however, that, subject to Section 7.1.8, -------- ------- -------------
(a) in no event shall any Pledged Subsidiary merge with and into
(i) any Subsidiary other than another Pledged Subsidiary unless (A) the Required Lenders shall have given their prior written consent thereto, or (B) after giving effect thereto, the Stockholders’ Equity Administrative Agent shall have a perfected pledge of, and security interest in and to, all of the Borrower issued and outstanding shares of Capital Stock of the surviving Person in form and substance satisfactory to the Administrative Agent and its Subsidiaries is at least equal counsel, pursuant to 90% such documentation and opinions as shall be necessary and appropriate in the opinion of the Administrative Agent and its counsel to create, perfect or maintain the collateral position of the Administrative Agent and the Lenders therein as contemplated by this Agreement; or
(ii) any other Pledged Subsidiary if, after giving effect to such Stockholders’ Equity merger, the Administrative Agent has less than that percentage of the issued and outstanding shares of the surviving Person pledged to it than it had pledged to it immediately prior theretoto such merger; and
(iib) in the case of a the merger involving of any Subsidiary into the Borrower, the Borrower where the Borrower is not the surviving corporation:
(A) shall be the surviving corporation shall have assumed in a writing, delivered and continue to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized incorporated under the laws of a jurisdiction other than State of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementStates.
Appears in 1 contract
Samples: Credit Agreement (Primestar Inc)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:Issuer; Disposition of Trust Assets.
(a) any such Subsidiary may (i) liquidate The Issuer shall not consolidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long asunless:
(i) the Person (if other than the Issuer) formed by or surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any State and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture on the part of the Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect theretoto such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) the Issuer shall have delivered to the Indenture Trustee an Officer's Certificate and an Opinion of Counsel addressed to the Issuer, each stating (A) that such transaction will not have any material adverse tax consequence to the Trust, the Stockholders’ Equity of Issuer or any Noteholder and (B) that all conditions precedent herein provided for in this Section 3.10 have been complied with, which shall include any filing required by the Borrower Exchange Act;
(v) any action as is necessary to maintain the Lien and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretosecurity interest created by this Indenture shall have been taken; and
(iivi) the Issuer shall have delivered to the Indenture Trustee an Officer's Certificate and an Opinion of Counsel each stating that such consolidation or merger and such supplemental indenture comply with this Article III and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act).
(b) Except as otherwise expressly permitted by this Indenture or the other Basic Documents, the Issuer shall not convey or transfer any material portion of its properties or assets included in the case of a merger involving the Borrower where the Borrower is not the surviving corporationIndenture Trust Estate to any Person, unless:
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer the conveyance or transfer of which is hereby restricted shall (A) be a United States citizen or a Person organized and existing under the surviving corporation shall have assumed in a writinglaws of the United States of America or any State, (B) expressly assumes, by an indenture supplemental hereto, executed and delivered to the Administrative AgentIndenture Trustee, the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agrees by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of the Borrower’s obligations hereunder Noteholders, (D) unless otherwise provided in such supplemental indenture, expressly agrees to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes and (E) expressly agrees by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings with the Commission (and any other Loan Documentsappropriate Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(iv) the Issuer shall have delivered to the Indenture Trustee an Officer's Certificate and an Opinion of Counsel addressed to the Issuer, each stating (A) that such transaction will not have any material adverse tax consequence to the Trust, the Issuer, any Noteholder or any Certificateholder and (B) that all conditions precedent herein provided for in this Section 3.10 have been complied with, which shall include any filing required by the surviving corporation shall, promptly upon the request of the Administrative Agent or Exchange Act;
(v) any Lender, supply such documentation and other evidence action as is reasonably requested necessary to maintain the lien and security interest created by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulationsthis Indenture shall have been taken; and
(Cvi) as soon as practicable after receiving notice from the Borrower Issuer shall have delivered to the Indenture Trustee an Officer's Certificate and an Opinion of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to Counsel each Protesting Lender, the Borrower shall, effective on or before the date stating that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent conveyance or transfer and such Protesting Lender supplemental indenture comply with this Article III and that the Commitments of such Protesting Lender shall be terminated; all conditions precedent herein provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing for relating to such Protesting Lender, together transaction have been complied with accrued interest thereon to (including any filing required by the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementExchange Act).
Appears in 1 contract
Consolidation, Merger, etc. The Borrower Company will not, and will not permit any of its Subsidiaries Subsidiary to, ,
(a) liquidate or dissolve, consolidate with, or merge into or withwith (EXCLUDING, HOWEVER, the OTBC Merger), any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:Person (or of any division thereof); or
(ib) sell, transfer, convey or otherwise dispose of all or any substantial part of its assets; PROVIDED, HOWEVER, that
(c) any Subsidiary may liquidate or dissolve voluntarily into, and may merge with and into any other Subsidiary;
(d) Surviving Xxxxxx Xxxxx or any of its Subsidiaries may purchase or acquire all of the outstanding shares of Capital Stock of, or substantially all of the assets of, any Person (or any division thereof), if immediately after giving effect thereto, no Default Circumstance shall have occurred and be continuing;
(e) any Subsidiary of Surviving Xxxxxx Xxxxx may merge with any other corporation permitted to be acquired pursuant to CLAUSE (d) and may be created and capitalized for such purposes;
(f) the Stockholders’ Equity Company may merge with Surviving Xxxxxx Xxxxx; PROVIDED, HOWEVER, that Surviving Xxxxxx Xxxxx shall expressly assume all obligations of the Borrower Company under this Agreement, the Notes and its Subsidiaries is at least equal each other Purchase Document pursuant to 90% of such Stockholders’ Equity immediately prior theretoan assumption agreement satisfactory to the Required Noteholders; and
(iig) for so long as Surviving Xxxxxx Xxxxx shall have any Indebtedness outstanding (or any unused commitments in effect) under the Senior Loan Agreement, any sale, transfer, conveyance or other disposition of assets, including a sale, transfer, conveyance or other disposition by Surviving Xxxxxx Xxxxx of the Capital Stock of any of its Subsidiaries (other than Safety Insurance or Safety Indemnity), which is permitted by Section 9.5.2 of the Senior Loan Agreement; PROVIDED, HOWEVER, that (i) in connection therewith Surviving Xxxxxx Xxxxx shall have made a permanent prepayment of principal of Senior Indebtedness outstanding (or of unused commitments under the Senior Loan Agreement) in the case of a merger involving full amount required by Section 4.3.2 thereof as in effect on the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writingClosing Date, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will -------------------------- not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) so long as no Default has occurred and is continuing or would occur after giving effect thereto, any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may or merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; andSubsidiary;
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, any Acquisition Prospect may liquidate or dissolve voluntarily into, or merge with and into, the Borrower or any Subsidiary, and the assets or stock of its Subsidiaries any Acquisition Prospect may merge into any other Person, be purchased or any other Person may merge into otherwise acquired by the Borrower or any such Subsidiary; and
(c) Permitted Acquisitions, or provided that
(i) the Borrower or any shall have delivered to the Administrative Agent a duly-completed certificate in the form of its Subsidiaries may purchase or otherwise acquire all or substantially all Exhibit Q (each, an "Acquisition Certificate"), confirming that the financial conditions referred to in clause (c)(iii) below with respect to such acquisition will be satisfied, together with (x) a statement of the assets chief financial Authorized Officer of any Personthe Borrower detailing all amounts required to consummate the prospective Permitted Acquisition and a business description and summary of terms of the prospective Permitted Acquisition, (y) evidence that the prospective Permitted Acquisition is being made pursuant to a written agreement approved by all necessary parties, including the Borrower and the Acquisition Prospect, and (z) a summary description of the business of the Acquisition Prospect in substantially similar form to the reports delivered in connection with acquisitions under the Original Credit Agreement,
(ii) the Administrative Agent shall have received, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower in form and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered substance reasonably satisfactory to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any with copies for each Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.,
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not(i) Subject to the provisions of Subsection (ii) below of this Section 4.1(j), and will not permit any in case of its Subsidiaries to, liquidate or dissolve, consolidate the consolidation of the Company with, or merge into merger of the Company with or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, or of the Borrower or any other Subsidiary, and the assets or stock sale of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the properties and assets of the Company to, any Person, and in each case so long as:
connection therewith consideration is payable to holders of Preferred Stock (ior other securities or property issuable upon exercise of Warrants) after giving effect theretoin exchange therefor, the Stockholders’ Equity Warrants shall remain subject to the terms and conditions set forth in this Agreement and each Warrant shall, after such consolidation, merger or sale, entitle the Holder to receive upon exercise the number of shares in the capital stock or other securities or property (including cash) of or from the Person resulting from such consolidation or surviving such merger or to which such sale shall be made or of the Borrower and its Subsidiaries is at least equal to 90% parent company of such Stockholders’ Equity Person, as the case may be, that would have been distributable or payable on account of the Preferred Stock if such Holder's Warrants had been exercised immediately prior theretoto such merger, consolidation or sale (or, if applicable, the record date therefor); andand in any such case the provisions of this Agreement with respect to the rights and interests thereafter of the Holders of Warrants shall be appropriately adjusted by the Board in good faith so as to be applicable, as nearly as may reasonably be, to any shares, other securities or any property thereafter deliverable on the exercise of the Warrants.
(ii) in Notwithstanding the case of a merger involving foregoing, (x) if the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writingCompany merges or consolidates with, delivered to the Administrative Agent, or sells all or substantially all of the Borrower’s obligations hereunder its property and under the assets to, another Person (other Loan Documents;
(B) the surviving corporation shall, promptly upon the request than an Affiliate of the Administrative Agent or any Lender, supply such documentation Company) and other evidence as consideration is reasonably requested by the Administrative Agent or any Lender payable to holders of Preferred Stock in order exchange for the Administrative Agent or such Lender to carry out and be satisfied it has complied their Preferred Stock in connection with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and consolidation or sale which consists solely of cash, or (y) in any the event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States dissolution, liquidation or a political subdivision thereof or Liberiawinding up of the Company, any Lender that may not legally lend to, establish credit for then the account Holders of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender Warrants shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal entitled to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to receive distributions on the date of payment such event on an equal basis with holders of Preferred Stock (or other securities issuable upon exercise of the Warrants) as if the Warrants had been exercised immediately prior to such event, less the Exercise Price. Upon receipt of such principal payment, if any, the rights of a Holder shall terminate and cease and such Holder's Warrants shall expire. If the Company has made a Repurchase Offer that has not expired at the time of such transaction, the holders of the Warrants will be entitled to receive the higher of (i) the amount and all other amounts payable to such Protesting Lender under this Agreement.the holders of the Warrants described above and
Appears in 1 contract
Samples: Warrant Agreement (Knology Inc)
Consolidation, Merger, etc. The Borrower Mortgagor will not, and will not permit any of its Subsidiaries tosubsidiaries, to liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof), or issue any securities or any rights or options to purchase securities for less than fair value except:
(ai) any such Subsidiary subsidiary of the Mortgagor may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower Mortgagor or any other Subsidiarysubsidiary of the Mortgagor, and the assets or stock securities of any Subsidiary subsidiary of the Mortgagor may be purchased or otherwise acquired by the Borrower Mortgagor or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7subsidiary of the Mortgagor; and
(bii) so long as no default or Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower Mortgagor or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity may sell all or substantially all of the Borrower assets of the Mortgagor to any Person, or merge with any Person, if (x) such transaction would not have any material adverse effect on the Mortgaged Property or the rights of the Mortgagee hereunder or under any of the other Loan Documents, and its Subsidiaries is (y) at least equal to 90% fifty percent (50%) of the then outstanding amount of principal due under the Note, plus accrued interest thereon, is redeemed at the closing of such Stockholders’ Equity immediately prior thereto; and
merger, sale or purchase, and (iiz) if the Mortgagor sells all or substantially all of its assets to any Person or merges with any Person, such Person assumes, and agrees to be liable for (jointly and severally with the Mortgagor in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agentsale of assets), all of the Borrower’s obligations hereunder of the Mortgagor under this Mortgage and under the other Loan Documents;
(B) the surviving corporation shall; provided, promptly upon the request of the Administrative Agent or that any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results sale of all necessary “know your customer” or other similar checks under substantially all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and its assets shall not in any event no later than five Business Days after way affect the delivery of such notice, for a surviving corporation that is organized under lien on the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow Mortgaged Property created hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof), except:
(a) any such Restricted Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiaryRestricted Subsidiary (PROVIDED, HOWEVER, that a Guarantor may only liquidate or dissolve into, or merge with and into, the Borrower or another Guarantor), and the assets or stock of any Restricted Subsidiary may be purchased or otherwise acquired by the Borrower or any other Restricted Subsidiary (PROVIDED, HOWEVER, that the assets or (ii) stock of any Guarantor may only be purchased or otherwise acquired by the Borrower or another Guarantor); PROVIDED, FURTHER, that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Restricted Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding shares of Capital Stock of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted maintain the collateral position of the Administrative Agent and the Secured Parties therein as contemplated by Section 6.2.7this Agreement; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Restricted Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all extent permitted by CLAUSE (g) of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementSECTION 7.
Appears in 1 contract
Samples: Credit Agreement (Titan Corp)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.77.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ ' Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ ' Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Facility Agent, all of the Borrower’s 's obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Facility Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Facility Agent or any Lender in order for the Administrative Facility Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “"know your customer” " or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “"Protesting Lender”") shall so notify the Borrower and the Administrative Facility Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Facility Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances Loan owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower Parent Guarantor and the Company will notnot (or apply to the Bankruptcy Court to do so), and will not permit any of their Subsidiaries to (or permit any of its Subsidiaries to apply to the Bankruptcy Court to), liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:corporation, except that if no Default or Event of Default shall occur and be continuing or shall exist at the time of any such merger or consolidation or immediately thereafter and after giving effect thereto,
(a) any such Subsidiary of the Company may (i) liquidate or dissolve voluntarily, and into or may merge or consolidate with and into, or into the Borrower or any other Subsidiary, and Company if the assets or stock of Company is the surviving corporation;
(b) any Subsidiary of the Company may be purchased liquidate or otherwise acquired by dissolve into or may merge or consolidate with or into any wholly-owned Subsidiary of the Borrower Company that is an Obligor if the Obligor is the surviving corporation;
(c) any Subsidiary of the Company that is not an Obligor may liquidate or dissolve or merge or consolidate with or into any other Subsidiary or of the Company that is not an Obligor;
(iid) the Parent Guarantor may, with the prior written consent of the Required Lenders, merge with and into another Person in connection the Company and, provided that the Parent Guarantor shall assume all of the Obligations of the Company under this Agreement and the other Loan Documents, the Company may, with a sale or other disposition permitted by Section 6.2.7the prior written consent of the Required Lenders, merge with and into the Parent Guarantor; and
(be) so long as no Event of Default or Prepayment Event has occurred the Company and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into engage in Asset Dispositions permitted by Section 9.2.11. Notwithstanding the foregoing, neither the Company nor any other Person, or any other Person Subsidiary may merge into the Borrower or engage in any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is transaction unless at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
five (ii) or, in the case of a merger any such transaction involving the Borrower where Company or any other Obligor, 30) Business Days prior thereto, or such shorter period as shall be acceptable to the Borrower is not Agent, the surviving corporation:
(A) the surviving corporation Company shall have assumed in a writing, delivered to the Administrative Agent, all Agent a description of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shallproposed transaction, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such mergerreasonable detail, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through certificate signed by an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date Authorized Officer certifying that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments transaction will not result in a Default or an Event of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementDefault.
Appears in 1 contract
Samples: Post Petition Credit Agreement (Kaiser Aluminum Corp)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7Subsidiary; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) , the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) Documents to which it is a party, provided, that so long as the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as FEC Interest Equalization is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberiaeffect, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender merger under this clause (a “Protesting Lender”ii) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal is subject to the aggregate outstanding principal amount consent of FEC (it being agreed that failure to obtain the Advances owing consent of FEC shall not constitute an Event of Default under Section 8.1.3 but may give FEC grounds to such Protesting Lender, together with accrued interest thereon to terminate the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementFEC Interest Equalization).
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will notIn the case of (A) any capital reorganization, reclassification or other change of outstanding Common Stock (or Other Securities) (other than those referred to in Section 3.4 hereof and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate withother than a change in par value), or merge into or with, (B) any consolidation of the Company with any other corporation except:
or any merger of the Company into another corporation or of another corporation into the Company (aother than a consolidation or merger in which the Company is the continuing or surviving corporation and which does not result in any reclassification of, or change (other than a change in par value, or as a result of a subdivision or combination to which Section 3.4 hereof is applicable) in, the outstanding Common Stock (or Other Securities)), or (C) any such Subsidiary may (i) liquidate sale or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into transfer to another Person in connection with a sale (other than by mortgage or other disposition permitted by Section 6.2.7; and
(bpledge) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the properties and assets of the Company, each Warrant shall from and after such event or transaction be exercisable upon the terms and conditions specified in this Warrant, for the number of shares of stock or other securities or assets to which the Holder (at the time of the transaction or event) upon exercise of this Warrant would have been entitled upon such transaction or event as if such Holder exercised this Warrant in full immediately prior to such transaction or event and in any Personsuch case, if necessary, the provisions set forth in this Section 4 with respect to the rights thereafter of the Holder shall be appropriately adjusted so as to be applicable, as nearly as may be possible, to any shares of stock or other securities or assets thereafter deliverable on the exercise of the Warrant; provided, that any such resulting or surviving corporation or purchaser, as the case may be, in each case so long as:
(i) after giving effect theretoany such transaction, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case shall expressly assume, by delivery of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, written instrument delivered to the Administrative Agent, all Company and the Holder prior to consummation of the Borrower’s obligations hereunder and under transaction in question, the other Loan Documents;
(B) the surviving corporation shallobligation to deliver, promptly upon the request exercise of the Administrative Agent Warrant, such shares, securities or any Lender, supply such documentation and property as the Holder of the Warrant or other evidence as is reasonably requested securities received by the Administrative Agent or any Lender Holder in order place thereof, shall be entitled to receive pursuant to the provisions hereof, and to make provisions for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than protection of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementexercise rights as above provided.
Appears in 1 contract
Samples: Stock Warrant (Sz Investments LLC)
Consolidation, Merger, etc. The Borrower Company will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Personcorporation, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
Person (ior of any division thereof) after giving effect thereto, the Stockholders’ Equity other than (a) any such transaction among or between Subsidiaries of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
Company as long as the surviving Person (ii) in the case of a merger liquidation, merger, dissolution or consolidation) or the acquiring Person (in the case of an acquisition) is a wholly-owned Subsidiary of the Company (and if as a result thereof any such Subsidiary which will cease to exist is a Designated Subsidiary, the obligations of such Subsidiary shall be assumed by a Subsidiary which is a Designated Subsidiary) or (b) any such transaction involving the Borrower where Company if the Borrower Company is not the surviving corporation:
, and provided that both before and after giving effect to any such transaction (A) whether involving the surviving corporation shall have assumed in a writingCompany or any of its Subsidiaries), delivered no Default has occurred and is continuing and the Company continues to the Administrative Agent, meet all of the Borrower’s its obligations hereunder under this Agreement and under the other Loan Documents;
. Notwithstanding the foregoing, the Company will not and will not permit any of its Subsidiaries to consummate any Acquisition unless (Bi) no Default or Event of Default shall have occurred and be continuing or would occur or exist upon consummation of the Acquisition, (ii) such Acquisition is of a business operation engaged in the same or a substantially similar line of business as that engaged in by the Company or any of its Subsidiaries on the date of the Acquisition, (iii) the surviving corporation shallprior effective written consent or approval to such Acquisition by the board of directors or equivalent governing body of the acquiree is obtained, promptly upon and (iv) with respect to any Acquisition in which the request aggregate consideration to be paid (including the assumption of liabilities) by the Company or any of its Subsidiaries equals or exceeds $20,000,000, the Company delivers to the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving prior written notice from the Borrower of such merger, and Acquisition in any event no later than five Business Days after the delivery form of Exhibit K hereto at least 30 days prior to the effective date of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; Acquisition provided that if the chief financial Authorized Corporate Officer does not have actual knowledge of any such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount Acquisition at least equal 30 days prior to the aggregate outstanding principal amount of effective date thereof, such notice will be required at such time as the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementchief financial Authorized Corporate Officer has actual knowledge thereof.
Appears in 1 contract
Samples: Credit Agreement (Andrew Corp)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person, except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiarySubsidiary of the Borrower, and the assets or stock (or other ownership interests) of any Subsidiary of the Borrower may be purchased or otherwise acquired by the Borrower or any other Subsidiary of the Borrower or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7Clause 9.7 (Asset Dispositions, etc.); and
(b) so long as no Event of Default or Mandatory Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to ninety per cent. (90% %) of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporationentity:
(A) the surviving corporation entity shall have assumed in a writing, delivered to the Administrative Facility Agent, all of the Borrower’s obligations hereunder and under the other Loan Finance Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply Borrower shall have provided such documentation and other evidence information as is reasonably requested by the Administrative Facility Agent (for itself or on behalf of any Lender Lender) in order for the Administrative Facility Agent (or such Lender Lender, as the case may be) to carry out and be satisfied that it has complied with the results of all necessary “know your customer” or and other similar checks under all applicable laws and regulations (including all applicable anti-money laundering and anti-corrupt practices laws and regulations) in connection with the surviving entity; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation COFACE shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal consented to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementmerger.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Restricted Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof), except:
(a) any such Restricted Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiaryRestricted Subsidiary (provided, however, that a Guarantor may only liquidate or dissolve into, or merge with and into, the Borrower or another Guarantor), and the assets or stock of any Restricted Subsidiary may be purchased or otherwise acquired by the Borrower or any other Restricted Subsidiary (provided, however, that the assets or (ii) stock of any Guarantor may only be purchased or otherwise acquired by the Borrower or another Guarantor); provided, further, that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Restricted Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding shares of Capital Stock of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted maintain the collateral position of the Administrative Agent and the Secured Parties therein as contemplated by Section 6.2.7this Agreement; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Restricted Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (g) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or stock of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof), supply or acquire such documentation and other evidence as is reasonably requested Person by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Titan Corp)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate merge or dissolveconsolidate with any Person and the Borrower will not, consolidate with, or merge into or withand will not permit, any other corporation Restricted Subsidiary to, transfer all or substantially all its assets to any Person, except:
(a) any such Restricted Subsidiary may (i) liquidate consolidate with or dissolve voluntarily, and may merge with and into, into or transfer all or substantially all of its assets to the Borrower or any other Restricted Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and;
(b) so long as any entity may consolidate with or merge into the Borrower or a Restricted Subsidiary if the Borrower or a Restricted Subsidiary is the surviving entity and after giving effect to such transaction (a) the Borrower's Consolidated Net Worth shall not be less than its Consolidated Net Worth immediately prior to such transaction (without regard to purchase accounting adjustments), (b) neither the Borrower nor any of its Subsidiaries shall be liable with respect to Indebtedness or allow its property to be subject to any Lien which is not permitted hereby, (c) the Borrower can incur at least $1 of additional Indebtedness pursuant to clause (h) under Section 8.2.2; provided, however, this provision (b)(c) shall not apply if the consolidating or merging Person has no Event outstanding Indebtedness, (d) substantially all of Default the assets and business of the Borrower and the Restricted Subsidiaries are located in the U.S., and (e) at the time of such merger or Prepayment Event has occurred consolidation, and is continuing or would occur after giving effect thereto, no Default or Event of Default shall exist; and
(c) the Borrower may consolidate or any of its Subsidiaries may merge into any other Person, with another Person or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire transfer all or substantially all its assets to another entity if (a) the surviving or transferee entity is a corporation or limited partnership organized under U.S. law and such entity assumes all of the assets of any Personobligations under the Agreement and the Security Documents and delivers a legal opinion reasonably acceptable to Required Lenders to the effect that the assumption agreement has been duly authorized, in each case so long as:
executed and delivered by and is enforceable against the successor; and (ib) after giving effect thereto, to such transaction (i) such entity shall not have a consolidated net worth of less than the Stockholders’ Equity Consolidated Net Worth of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior theretoto such transaction (without regard to purchase accounting adjustments); and
(ii) such entity shall not be liable with respect to Indebtedness or allow its property to be subject to any Lien which is not permitted hereby; (iii) such entity can incur at least $1 of additional Indebtedness pursuant to clause (h) under Section 8.2.2; provided, however, this provision (c)(b)(iii) shall not apply if the consolidating or merging entity has no outstanding Indebtedness; (iv) substantially all the assets and business of such entity are located in the case of a merger involving U.S.; and (v) at the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower time of such merger, and in any event consolidation, sale or other transaction no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) Default shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementexist.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and -------------------------- will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or otherwise enter into or consummate any Acquisition, except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other Wholly Owned Subsidiary (provided, however, that a Guarantor may only liquidate or dissolve into, -------- ------- or merge with and into, the Borrower or another Guarantor that is a Wholly Owned Subsidiary), and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Wholly Owned Subsidiary (provided, however, that the assets or (ii) stock of any Guarantor -------- ------- may only be purchased or otherwise acquired by the Borrower or another Guarantor); provided, further, that in no event shall any Pledged -------- ------- Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary that is a Wholly Owned Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding shares of Capital Stock of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted maintain the collateral position of the Administrative Agent and the Secured Parties therein as contemplated by Section 6.2.7this Agreement; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of consummate a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementPermitted Acquisition.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower Each of Holdings, Intermediate Holdings and the Borrowers will not, and will not permit any of its the Restricted Subsidiaries to, liquidate or dissolve, complete a share exchange with, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Restricted Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower Company or any other SubsidiaryRestricted Subsidiary (provided, however, that a Domestic Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, the Company or another Domestic Subsidiary Guarantor), and the assets or stock Capital Stock of any Subsidiary may be purchased or otherwise acquired by the Borrower Company or any other Restricted Subsidiary (provided, however, that the assets or (ii) Capital Stock of any Domestic Subsidiary Guarantor may only be purchased or otherwise acquired by the Company or another Domestic Subsidiary Guarantor); provided, further, that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary (other than another Subsidiary the Capital Stock of which is pledged to the Administrative Agent for the benefit of the same Secured Parties to which the Capital Stock of such Pledged Subsidiary are pledged) unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Stock (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation pursuant to such documentation and opinions, in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7maintain the collateral position of the Secured Parties therein; and
(b) so long as no Event of Specified Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower Company or any of its Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (g) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Capital Stock of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof), supply or acquire such documentation and other evidence as is reasonably requested Person by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not(i) Subject to the provisions of Subsection (ii) below of this Section 4.1(j), and will not permit any in case of its Subsidiaries to, liquidate or dissolve, consolidate the consolidation of the Company with, or merge into merger of the Company with or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, or of the Borrower or any other Subsidiary, and the assets or stock sale of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the properties and assets of the Company to, any Person, and in each case so long as:
connection therewith consideration is payable to holders of Common Shares (ior other securities or property purchasable upon exercise of Warrants) after giving effect theretoin exchange therefor, the Stockholders’ Equity Warrants shall remain subject to the terms and conditions set forth in this Agreement and each Warrant shall, after such consolidation, merger or sale, entitle the Holder to receive upon exercise the number of shares in the capital or other securities or property (including cash) of or from the Person resulting from such consolidation or surviving such merger or to which such sale shall be made or of the Borrower and its Subsidiaries is at least equal to 90% parent of such Stockholders’ Equity Person, as the case may be, that would have been distributable or payable on account of the Common Shares if such Holder's Warrants had been exercised immediately prior theretoto such merger, consolidation or sale (or, if applicable, the record date therefor); andand in any such case the provisions of this Agreement with respect to the rights and interests thereafter of the Holders of Warrants shall be appropriately adjusted by the Board in good faith so as to be applicable, as nearly as may reasonably be, to any shares, other securities or any property thereafter deliverable on the exercise of the Warrants.
(ii) Notwithstanding the foregoing, (x) if the Company merges or consolidates with, or sells all or substantially all of its property and assets to, another Person (other than an Affiliate of the Company) and consideration is payable to holders of Common Shares in exchange for their Common Shares in connection with such merger, consolidation or sale which consists solely of cash, or (y) in the event of the dissolution, liquidation or winding up of the Company, then the Holders of Warrants shall be entitled to receive distributions on the date of such event on an equal basis with holders of Common Shares (or other securities issuable upon exercise of the Warrants) as if the Warrants had been exercised immediately prior to such event, less the Exercise Price. Upon receipt of such payment, if any, the rights of a Holder shall terminate and cease and such Holder's Warrants shall expire. If the Company has made a Repurchase Offer that has not expired at the time of such transaction, the holders of the Warrants will be entitled to receive the higher of (i) the amount payable to the holders of the Warrants described above and (ii) the Repurchase Price payable to the holders of the Warrants pursuant to such Repurchase Offer. In case of any such merger, consolidation or sale of assets, the surviving or acquiring Person and, in the event of 29 24 any dissolution, liquidation or winding up of the Company, the Company shall deposit promptly with the Warrant Agent the funds, if any, necessary to pay the Holders of the Warrants. After receipt of such deposit from such Person or the Company and after receipt of surrendered Warrant Certificates, the Warrant Agent shall make payment by delivering a check in such amount as is appropriate (or, in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writingconsideration other than cash, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the such other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence consideration as is reasonably requested appropriate) to such Person or Persons as it may be directed in writing by the Administrative Agent or any Lender in order for the Administrative Agent or Holder surrendering such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementWarrants.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof) except:
(a) any such Subsidiary (other than a Designated Subsidiary) may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other Subsidiary (other than a Designated Subsidiary), and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary (other than a Designated Subsidiary); provided, however, that, subject to the preceding provisions of this clause, in no event shall any Subsidiary Guarantor merge with and into
(i) any Subsidiary other than another Subsidiary Guarantor unless (A) the Required Lenders shall have given their prior written consent thereto, or (B) after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, all of the issued and outstanding shares of capital stock of the surviving Person in form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary and appropriate in the reasonable opinion of the Administrative Agent and its counsel to create, perfect or maintain the collateral position of the Administrative Agent and the Lenders -98- 106 therein as contemplated by this Agreement; or
(ii) any other Subsidiary Guarantor if, after giving effect to such merger, the Administrative Agent has less than that percentage of the issued and outstanding Capital Stock of the surviving Person pledged to it than it had pledged to it immediately prior to such merger; provided, that, notwithstanding the foregoing, in no event shall a Subsidiary Guarantor merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7Designated Subsidiary; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (f) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or stock of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof), supply or acquire such documentation and other evidence as is reasonably requested Person by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Prosource Inc)
Consolidation, Merger, etc. The Borrower Parent will not, and will not permit any of its Subsidiaries Subsidiary to, liquidate or merge, dissolve, liquidate, consolidate withwith or into another Person, except that, so long as no Default exists or merge into or with, any other corporation except:
would result therefrom (a) any such Subsidiary (other than the Subsidiary Guarantors and the Borrowers) may (i) liquidate liquidate, dissolve, or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower Parent or any other SubsidiaryU.S. Subsidiary (other than the Borrowers and Hecla Admiralty), (b) any Foreign Subsidiary (including each Subsidiary listed on Item 7.2.9 of the Disclosure Schedule as of the Effective Date to the extent each such Subsidiary is not a Material Subsidiary at such time) may liquidate, dissolve, or dissolve voluntarily into, and may merge with or into, any other Subsidiary (other than the Borrowers and Hecla Admiralty), (c) any Subsidiary Guarantor may merge with and into the Parent or any other Subsidiary Guarantor and (d) the assets or stock Capital Securities of any Subsidiary (other than the Subsidiary Guarantors and the Borrowers) may be purchased or otherwise acquired by the Borrower Parent or any other Subsidiary (other than the Borrowers and Hecla Admiralty) and the Capital Securities or assets of any Subsidiary Guarantor may be purchased or otherwise acquired by the Parent or any other Subsidiary Guarantor; provided that (iiA) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, (B) such transaction will not affect the Borrower or any of Borrowers’ ability to repay the Loans and interest thereon when due, (C) such transaction will not adversely affect (as determined by each Lender in its Subsidiaries may merge into any other Person, or any other Person may merge into sole discretion) the Borrower or any such Subsidiary, or security interest granted under the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all Loan Documents in favor of the assets of any Person, in each case so long as:
Secured Parties and (iD) after giving effect theretofollowing such transaction, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered Parent will promptly deliver to the Administrative Agent, all Agent an update of Item 6.8 of the Borrower’s obligations hereunder and under Disclosure Schedule reflecting the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request new corporate structure of the Administrative Agent or any Lender, supply such documentation Parent and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementits Subsidiaries.
Appears in 1 contract
Consolidation, Merger, etc. The Holdings and each Borrower will not, and will not permit any of its their respective Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Restricted Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the either Borrower or any other SubsidiaryRestricted Subsidiary (provided, however, that a Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, either Borrower or another Subsidiary Guarantor), and the assets or stock Capital Securities of any Subsidiary may be purchased or otherwise acquired by the either Borrower or any other Restricted Subsidiary (provided, however, that the assets or (ii) Capital Securities of any Subsidiary Guarantor may only be purchased or otherwise acquired by either Borrower or another Subsidiary Guarantor); provided, further, that in no event shall any Pledged Subsidiary consolidate with or merge with and into (x) any Unrestricted Subsidiary or (y) any other Subsidiary which is not another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge (on a Second Priority basis) of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Securities (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7; andmaintain the collateral position of the Secured Parties therein;
(b) a Borrower may merge with or into the other Borrower;
(c) so long as no Event of Specified Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the either Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (g) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Capital Securities of any PersonPerson (or any division thereof) (other than either Borrower or any of its Subsidiaries), or acquire such Person by merger (it being understood that the foregoing shall not prohibit consummation of any transaction committed to in each case so long as:
(i) after giving effect thereto, a definitive agreement that was entered into prior to the Stockholders’ Equity occurrence of the Borrower and its Subsidiaries is at least equal to 90% of any such Stockholders’ Equity immediately prior theretoSpecified Default); and
(iid) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and any transaction permitted under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementSection 11.12.
Appears in 1 contract
Consolidation, Merger, etc. The Holdings and each Borrower will not, and will not permit any of its their respective Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the either Borrower or any other SubsidiarySubsidiary (PROVIDED, HOWEVER, that a Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, either Borrower or another Subsidiary Guarantor), and the assets or stock Capital Securities of any Subsidiary may be purchased or otherwise acquired by the either Borrower or any other Subsidiary (PROVIDED, HOWEVER, that the assets or (ii) Capital Securities of any Subsidiary Guarantor may only be purchased or otherwise acquired by either Borrower or another Subsidiary Guarantor); PROVIDED, FURTHER, that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Securities (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7; andmaintain the collateral position of the Secured Parties therein;
(b) a Borrower may merge with or into the other Borrower;
(c) so long as no Event of Specified Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the either Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by CLAUSE (g) of its Subsidiaries may SECTION 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Capital Securities of any PersonPerson (or any division thereof), or acquire such Person by merger (it being understood that the foregoing shall not prohibit consummation of any transaction committed to in each case so long as:
(i) after giving effect thereto, a definitive agreement that was entered into prior to the Stockholders’ Equity occurrence of the Borrower and its Subsidiaries is at least equal to 90% of any such Stockholders’ Equity immediately prior theretoSpecified Default); and
(iid) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and any transaction permitted under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementSECTION 11.12.
Appears in 1 contract
Samples: Credit Agreement (World Almanac Education Group Inc)
Consolidation, Merger, etc. The Borrower Each Company will not, and will not -------------------------- permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation corporation, or (except as permitted by Section ------- 8.4(e)) purchase or otherwise acquire all or substantially all of the assets of ------ any Person (or of any division thereof) except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower such Company or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower such Company or any other Subsidiary or Subsidiary; provided, however, that (i) Agent shall have received at least 15 days' prior written notice thereof and (ii) merge the applicable requirements of Section 7.8 shall have been complied with and into another Person in ----------- connection with a sale or other disposition permitted by Section 6.2.7such transaction; and
(b) so long as such Company or any Subsidiary may merge with any other Person if (i) no Default or Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) the general nature of its business is not changed and (iii) the surviving entity is a Company (in the case of a merger involving a Company) or a Subsidiary or an entity which is wholly-owned by a wholly-owned Subsidiary (in the Borrower where the Borrower is not the surviving corporation:
case of a merger involving a Subsidiary); provided, however, that (Ai) the surviving corporation Agent shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder received at least 15 days' prior written notice thereof and under the other Loan Documents;
(Bii) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has Companies shall have complied with the results applicable requirements of all necessary “know your customer” Section 7.8 in ----------- connection with such transaction. Notwithstanding the foregoing, nothing in this clause (b) shall prohibit a merger solely for the purpose of selecting an alternate jurisdiction of incorporation; provided, further, that the Companies shall have complied with the requirements of Section ------- 7.8 at or other similar checks under all applicable laws and regulations; and
(C) prior to such merger. In determining whether or not a Default or --- Event of Default would occur, the calculations set out in Section 8.3 ----------- shall be made on a pro forma basis, as soon of the end of the last fiscal quarter prior thereto, as practicable after receiving notice from if the Borrower merger had occurred prior to the period of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementcalculations.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower Xxxx-Xxxxx will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower Xxxx-Xxxxx or any other SubsidiaryU.S. Subsidiary (other than the Insurance Captive) (provided, however, that (i) a Subsidiary Borrower may only liquidate or dissolve into, or merge with and into, Xxxx-Xxxxx or another Borrower and (ii) a Guarantor may only liquidate or dissolve into, or merge with and into, Xxxx-Xxxxx or another Borrower or Guarantor), and the assets or stock Capital Securities of any Subsidiary may be purchased or otherwise acquired by the Borrower Xxxx-Xxxxx or any other U.S. Subsidiary (other than the Insurance Captive) (provided, however, that (i) the assets or Capital Securities of any Subsidiary Borrower may only be purchased or otherwise acquired by Xxxx-Xxxxx or another Borrower and (ii) the assets or Capital Securities of any Guarantor may only be purchased or otherwise acquired by Xxxx-Xxxxx or another Borrower or Guarantor); provided further that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary (except the Insurance Captive) unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Securities (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7maintain the collateral position of the Secured Parties therein; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower Borrowers or any of its their Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (f) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Capital Securities of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof), supply or acquire such documentation and other evidence as is reasonably requested Person by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or any division thereof), except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower or any other SubsidiarySubsidiary (provided, however, that a Subsidiary Guarantor may only liquidate or dissolve into, or merge with and into, the Borrower or another Subsidiary Guarantor), and the assets or stock Capital Securities of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary (provided, however, that the assets or (ii) Capital Securities of any Subsidiary Guarantor may only be purchased or otherwise acquired by the Borrower or another Subsidiary Guarantor); provided further that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Securities (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7maintain the collateral position of the Secured Parties therein; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into (to the Borrower or any such Subsidiary, or the Borrower or any extent permitted by clause (g) of its Subsidiaries may Section 7.2.5) purchase or otherwise acquire all or substantially all of the assets or Capital Securities of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof), supply or acquire such documentation and other evidence as is reasonably requested Person by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or purchase or otherwise acquire all or substantially all of the assets of any Person (or of any division thereof), except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Borrower (so long as the Borrower is the surviving corporation) or any other Subsidiary (provided, however, that a Guarantor may only liquidate or dissolve into, or merge with and into, the Borrower or another Guarantor, and a Consolidated Subsidiary may only liquidate or dissolve into, or merge with and into, the Borrower or another Consolidated Subsidiary), and the assets or stock Capital Stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary (provided, however, that the assets or (ii) Capital Stock of any Guarantor may only be purchased or otherwise acquired by the Borrower or another Guarantor, and the assets or Capital Stock of any Consolidated Subsidiary may only be purchased or otherwise acquired by the Borrower or another Consolidated Subsidiary); provided, however, that in no event shall any Pledged Subsidiary consolidate with or merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding shares of Capital Stock of the surviving Person as the Administrative Agent had immediately prior to such merger or consolidation in connection form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or maintain the collateral position of the Administrative Agent and the Secured Parties therein as contemplated by this Agreement; provided, further, however, that, notwithstanding the foregoing, in no event shall UnitedAuto Finance Inc. or any Encumbered Subsidiary liquidate or dissolve voluntarily into, or merge with a sale and into, the Borrower or other disposition permitted by Section 6.2.7any Consolidated Subsidiary; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets or Capital Stock of any Person, in each case so long as:
Person (i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lenderdivision thereof), supply or acquire such documentation and other evidence as is reasonably requested Person by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreement.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower Borrowers will not, and will not permit any of its their respective Subsidiaries toto Merge, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge Merge with and into, the U.S. Borrower or any other SubsidiarySubsidiary (provided, however, that a Subsidiary Guarantor may only Merge with and into, the U.S. Borrower or another Subsidiary Guarantor), and the assets or stock Capital Securities of any Subsidiary may be purchased or otherwise acquired by the U.S. Borrower or any other Subsidiary (provided, however, that the assets or (ii) merge Capital Securities of any Subsidiary Guarantor may only be purchased or otherwise acquired by the U.S. Borrower or another Subsidiary Guarantor and provided further that Field may not purchase or otherwise acquire the assets or Capital Securities of Boxmore or any of its Subsidiaries prior to the completion of the whitewash procedures required under Section 7.1.12 and/or any refinancing of the Loan Notes as contemplated thereby); provided further that in no event shall any Pledged Subsidiary Merge with and into any Subsidiary other than another Pledged Subsidiary unless after giving effect thereto, the Administrative Agent shall have a perfected pledge of, and security interest in and to, at least the same percentage of the issued and outstanding interests of Capital Securities (on a fully diluted basis) of the surviving Person as the Administrative Agent had immediately prior to such Merger in connection with a sale form and substance satisfactory to the Administrative Agent and its counsel, pursuant to such documentation and opinions as shall be necessary in the opinion of the Administrative Agent to create, perfect or other disposition permitted by Section 6.2.7; maintain the collateral position of the Secured Parties therein, and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the U.S. Borrower or any of its Subsidiaries may merge into any other Person, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this Agreementconsummate Permitted Acquisitions.
Appears in 1 contract
Consolidation, Merger, etc. The Each Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation Person, or otherwise enter into or consummate any Business Acquisition not constituting an Investment, except:
(a) any such Subsidiary may (i) any Domestic Subsidiary (other than a Subsidiary Borrower) may liquidate or dissolve voluntarilyvoluntarily into, and may merge with and into, the Parent or any Wholly Owned Subsidiary of the Parent that is a Domestic Subsidiary, and any Foreign Subsidiary may liquidate or dissolve voluntarily into, and may merge with and into, any Wholly Owned Subsidiary of the Parent that is a Foreign Subsidiary or a Domestic Subsidiary (so long as, in the case of a Domestic Subsidiary, such Domestic Subsidiary is a parent of such Foreign Subsidiary and such transaction will not result in any material increase in the liabilities of such Domestic Subsidiary); provided that any Subsidiary Guarantor may only liquidate or dissolve voluntarily into, and may only merge with and into, a Borrower or any other SubsidiarySubsidiary Guarantor that is a Wholly Owned Subsidiary of the Parent, and and
(ii) the assets or stock of any Domestic Subsidiary may be purchased or otherwise acquired by the Parent or any Wholly Owned Subsidiary of the Parent that is a Domestic Subsidiary, and the assets of any Foreign Subsidiary may be purchased or otherwise acquired by any Wholly Owned Subsidiary of the Parent that is a Foreign Subsidiary; provided that (A) the assets of any Subsidiary Guarantor to be purchased or otherwise acquired pursuant to the preceding exception may only be so purchased or otherwise acquired by a Borrower or another Subsidiary Guarantor that is a Wholly Owned Subsidiary of the Parent and (B) no substantial part of the assets of any other Subsidiary Borrower may be purchased or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7otherwise acquired pursuant to the preceding exception; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower Operations or any of its Subsidiaries may merge enter into or consummate any other Person, or any other Person may merge into Excepted Acquisition and the Borrower or any such Subsidiary, or the Borrower Parent or any of its Subsidiaries may purchase enter into or otherwise acquire all or substantially all of the assets of consummate any Person, in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
(ii) in the case of a merger involving the Borrower where the Borrower is not the surviving corporation:
(A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all of the Borrower’s obligations hereunder and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Permitted Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementAcquisition.
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
Consolidation, Merger, etc. The Borrower will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate If the Company, in a single -------------------------- transaction or dissolve voluntarilythrough a series of related transactions, and may merge consolidates with and into, the Borrower or any other Subsidiary, and the assets merges with or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Personperson or sells, or any other Person may merge into the Borrower or any such Subsidiaryassigns, or the Borrower or any of its Subsidiaries may purchase transfers, leases, conveys or otherwise acquire disposes of all or substantially all of its properties and assets to another person or group of affiliated persons or is a party to a merger or binding share exchange which reclassifies or changes its outstanding Common Stock (a "Fundamental Transaction"), as a condition to consummating any such transaction the person formed by or surviving any such consolidation or merger if other than the Company or the person to whom such transfer has been made (the "Surviving Person") shall enter into a supplemental warrant agreement. The supplemental warrant agreement shall provide (A) that the Holder of a Warrant then outstanding may exercise it for the kind and amount of securities, cash or other assets which such Holder could have received immediately after the Fundamental Transaction if such Holder had exercised the Warrant immediately before the effective date of any the transaction (regardless of whether the Warrants are then exercisable and without giving effect to the payment of the Exercise Price through the surrender of additional Warrants), assuming (to the extent applicable) that such Holder (x) was not a constituent persons or an affiliate of a constituent person to such transaction, (y) made no election with respect thereto and (z) was treated alike with the plurality of non-electing Holders, and (B) that the Surviving Person shall succeed to and be substituted for every right and obligation of the Company in respect of the Warrant Agreement and the Warrants. The Surviving Person shall mail to Holders of Warrants at the addresses appearing on the Warrant Register a notice briefly describing the supplemental warrant agreement. If the issuer of securities deliverable upon exercise of Warrants is an affiliate of the Surviving Person, that issuer shall join in each case so long as:
(i) after giving effect thereto, the Stockholders’ Equity of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; andsupplemental warrant agreement.
(ii) in Notwithstanding the case of foregoing, if the Company enters into a merger involving the Borrower where the Borrower is not the surviving corporation:
Fundamental Transaction with another person (A) the surviving corporation shall have assumed in other than a writing, delivered to the Administrative Agent, all subsidiary of the Borrower’s obligations hereunder Company) and under the other Loan Documents;
(B) the surviving corporation shall, promptly upon the request consideration is payable to holders of the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results shares of all necessary “know your customer” Common Stock (or other similar checks under all applicable laws and regulations; and
(Csecurities or property) as soon as practicable after receiving notice from the Borrower of such merger, and in any event no later than five Business Days after the delivery of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than issuable or deliverable upon exercise of the United States or a political subdivision thereof or Liberia, any Lender Warrants that may not legally lend to, establish credit are exercisable in exchange for the account of and/or do any business whatsoever their shares in connection with such surviving corporationFundamental Transaction which consists solely of cash, either directly or through an Affiliate then the Holders of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender Warrants shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal entitled to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to receive distributions on the date of payment such event on an equal basis with holders of such principal amount and all shares (or other amounts payable securities or property issuable or deliverable upon exercise of the Warrants) as if the Warrants had been exercised immediately prior to such Protesting Lender under this Agreementevent, less the Exercise Price therefor. Upon receipt of such payment, if any, the rights of a Holder of a Warrant shall terminate and cease and such Holder's Warrants shall expire. In case of any such Fundamental Transaction, the Surviving Person shall deposit promptly with the Warrant Agent the funds, if any, necessary to pay the Holders of the Warrants. After receipt of such deposit from such Surviving Person or the Company, and after receipt of surrendered Warrant Certificates, the Warrant Agent shall make payment by delivering a check in such amount as is appropriate to such Person or Persons as it may be directed in writing by the Holder surrendering such Warrants.
Appears in 1 contract
Consolidation, Merger, etc. The Borrower Company will not, and will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with, any other corporation except:
(a) any such Subsidiary may (i) liquidate or dissolve voluntarily, and may merge with and into, the Borrower or any other Subsidiary, and the assets or stock of any Subsidiary may be purchased or otherwise acquired by the Borrower or any other Subsidiary or (ii) merge with and into another Person in connection with a sale or other disposition permitted by Section 6.2.7; and
(b) so long as no Event of Default or Prepayment Event has occurred and is continuing or would occur after giving effect thereto, the Borrower or any of its Subsidiaries may merge into any other Personcorporation, or any other Person may merge into the Borrower or any such Subsidiary, or the Borrower or any of its Subsidiaries may purchase or otherwise acquire all or substantially all of the assets of any Person, in each case so long as:
Person (ior of any division thereof) after giving effect thereto, the Stockholders’ Equity other than (a) any such transaction among or between Subsidiaries of the Borrower and its Subsidiaries is at least equal to 90% of such Stockholders’ Equity immediately prior thereto; and
Company as long as the surviving Person (ii) in the case of a merger liquidation, merger, dissolution or consolidation) or the acquiring Person (in the case of an acquisition) is a wholly-owned Subsidiary of the Company (and if as a result thereof any such Subsidiary which will cease to exist is a Designated Subsidiary, the obligations of such Subsidiary shall be assumed by a Subsidiary which is a Designated Subsidiary) or (b) any such transaction involving the Borrower where Company if the Borrower Company is not the surviving corporation:
, and provided that both before and after giving effect to any such transaction (whether involving the Company or any of its Subsidiaries), no Default has occurred and is continuing and the Company continues to meet all of its obligations under this Agreement and the other Loan Documents. Notwithstanding the foregoing, the Company will not and will not permit any of its Subsidiaries to consummate any Acquisition unless (i) no Default or Event of Default shall have occurred and be continuing or would occur or exist upon consummation of the Acquisition, (ii) such Acquisition is of a business operation engaged in the same or a substantially similar line of business as that engaged in by the Company or any of its Subsidiaries on the date of the Acquisition, (iii) the prior effective written consent or approval to such Acquisition by the board of directors or equivalent governing body of the acquiree is obtained, (iv) after giving effect to such Acquisition the sum of (A) the surviving corporation shall have assumed in a writing, delivered to the Administrative Agent, all cash and Cash Equivalent Investments of the Borrower’s obligations hereunder Company and under the other Loan Documents;
Obligors, plus (B) the surviving corporation shallamount by which the Aggregate Commitments exceeds the Outstanding Amount of all Committed Loans, promptly upon Swing Line Loans, Foreign Swing Line Loans and L/C Obligations, will be not less than $30,000,000, and (v) with respect to any Acquisition in which the request aggregate consideration to be paid (including the assumption of liabilities) by the Company or any of its Subsidiaries equals or exceeds $50,000,000, the Company delivers to the Administrative Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under all applicable laws and regulations; and
(C) as soon as practicable after receiving prior written notice from the Borrower of such merger, and Acquisition in any event no later than five Business Days after the delivery form of Exhibit K hereto at least 30 days prior to the effective date of such notice, for a surviving corporation that is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof or Liberia, any Lender that may not legally lend to, establish credit for the account of and/or do any business whatsoever with such surviving corporation, either directly or through an Affiliate of such Lender (a “Protesting Lender”) shall so notify the Borrower and the Administrative Agent in writing. With respect to each Protesting Lender, the Borrower shall, effective on or before the date that such surviving corporation shall have the right to borrow hereunder, notify the Administrative Agent and such Protesting Lender that the Commitments of such Protesting Lender shall be terminated; provided that such Protesting Lender shall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Protesting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Protesting Lender under this AgreementAcquisition.
Appears in 1 contract
Samples: Credit Agreement (Andrew Corp)
