Fundamental Changes; Dispositions. The Parent and the Company will not, and will not permit any of their respective Subsidiaries to, merge, dissolve, liquidate, consolidate with or into another Person, make any Disposition or, in the case of any Subsidiary of the Parent, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except: (a) any Subsidiary of the Company may merge or consolidate with (i) the Company, provided that the Company shall be the continuing or surviving Person and or (ii) any one or more other Subsidiaries of the Company, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation); (b) any Subsidiary of the Company may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or another Subsidiary of the Company; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company or a Subsidiary Guarantor; (c) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of business; (d) Dispositions of property by any Subsidiary of the Company to the Company or another Subsidiary of the Company; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company or a Subsidiary Guarantor; (e) Investments permitted by Section 10.2; and (f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that: (i) no Event of Default has occurred and is continuing immediately before and after such transaction; (ii) immediately upon giving effect thereto, the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of Section 10.11; and (iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 or any other Financing Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date thereof and immediately after giving effect thereto, except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 and (B) the provisions of Sections 10.19(b) and (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the Company, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom or (ii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State of the United States of America or the District of Columbia.
Appears in 2 contracts
Samples: Note Purchase Agreement (Empire State Realty OP, L.P.), Note Purchase Agreement (Empire State Realty OP, L.P.)
Fundamental Changes; Dispositions. The Parent and the Company will not, and will not permit any of their respective Subsidiaries to, mergeMerge, dissolve, liquidate, consolidate with or into another Person, make any Disposition (including, in each case, pursuant to a Division) or, in the case of any Subsidiary of the Parent, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except:
(a) any Subsidiary of the Company Borrower may merge or consolidate with (i) the CompanyBorrower, provided that the Company Borrower shall be the continuing or surviving Person and or (ii) any one or more other Subsidiaries of the CompanyBorrower, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company Borrower that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(b) any Subsidiary of the Company Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation liquidation, pursuant to a Division or otherwise) to the Company Borrower or another Subsidiary of the CompanyBorrower; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company Borrower or a Subsidiary Guarantor; and provided, further, that if any Subsidiary Guarantor consummates a Division, the Borrower must comply with applicable obligations under Section 6.12 with respect to each Division Successor;
(c) Dispositions of (i) used, obsolete or or, worn out or surplus equipment, whether now owned or hereafter acquired, in the ordinary course of business, (ii) items of property no longer used or useful (or no longer economically practical to maintain) in the conduct of the business of the Borrower and the Subsidiaries (including allowing any registrations or any applications for registration of any Intellectual Property to lapse or be abandoned) or (iii) Cash Equivalents;
(d) Dispositions of property by any Subsidiary of the Company Borrower to the Company Borrower or another Subsidiary of the CompanyBorrower; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company Borrower or a Subsidiary Guarantor; and provided, further, that if any Subsidiary Guarantor consummates a Division, the Borrower must comply with applicable obligations under Section 6.12 with respect to each Division Successor;
(e) Investments permitted by Section 10.27.02; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of Section 10.117.11; and
(iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 Article V or any anythe other Financing DocumentLoan DocumentDocuments, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be are true and correct in all material respects (or, if qualified by materiality, Material Adverse Effect or similar language, in all respectsin the case of Section 5.19 in all respects, and, in each case, without duplication of any materiality qualifiers set forth in such representations and warranties) on and as of the date thereof and immediately after giving effect thereto, except (1) to whereto the extent that such representations and warranties specifically refer expressly relate to an earlier date, or given period (in which case they such representations and warranties shall be have been true and correct in all material respects (or, if qualified by materiality, Material Adverse Effect or similar language, in all respects) as of such earlier datedateas of the respective date or for the respective period, as the case may be (2) any representation or warranty that is already by its terms qualified as to “materiality”or, “Material Adverse Effect” or similar language shall be true and correct in the case of Section 5.19 in all respects as respects, and, in each case, without duplication of such applicable date (including such earlier date any materiality qualifiers set forth in the foregoing clause (1such representations and warranties)) after giving effect to such qualification and (3) except that for purposes of this Section 10.57.05, the representations and warranties contained in subsections (a) and (b) of Section 5.5 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 6.01 and (B) the provisions of Sections Section 10.19(b) and or (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfiedsatisfied (and, in the case of any such Disposition that is effected pursuant to a Division, the Borrower must, as and to the extent set forth in subsections (b) and (d) of this Section 7.05, comply with applicable obligations under Section 6.12 with respect to each Division Successor). Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company Borrower be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the CompanyBorrower, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom therefrom, (ii) consummate a Division or (iiiii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State of the United States of America or the District of Columbia.
Appears in 2 contracts
Samples: Credit Agreement (Empire State Realty Trust, Inc.), Credit Agreement (Empire State Realty OP, L.P.)
Fundamental Changes; Dispositions. The Parent and the Company will not(a) No Credit Party shall, and will not nor shall it permit any of their respective its Subsidiaries to, merge, dissolveconsolidate, or liquidate, consolidate wind-up or dissolve itself (or suffer any liquidation or dissolution) or sell, lease, transfer or otherwise dispose (in one transaction or a series of transactions) all or substantially all of the assets of Parent Borrower and its Subsidiaries taken as a whole, except that:
(1) any Subsidiary of Parent Borrower (other than a Subsidiary Borrower) may be merged with or into another PersonParent Borrower or any Guarantor Subsidiary, make or be liquidated, wound up or dissolved, or all or any Disposition orpart of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of transactions, to Parent Borrower or any Guarantor Subsidiary; provided, in the case of any Subsidiary of the Parentsuch a merger, issueParent Borrower or such Guarantor Subsidiary, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except:
(a) any Subsidiary of the Company may merge or consolidate with (i) the Company, provided that the Company as applicable shall be the continuing or surviving Person and Person;
(2) (i) any Subsidiary of Parent Borrower that is not a Guarantor (other than a Subsidiary Borrower or a Swiss Guarantor) may merge or consolidate with or into any other Subsidiary of Parent Borrower that is not a Guarantor (other than a Subsidiary Borrower), (ii) any one or more Subsidiary (other Subsidiaries of the Company, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company that is not than a Subsidiary Borrower or a Swiss Guarantor, ) may liquidate or dissolve or change its legal form if Parent Borrower determines in good faith that such Subsidiary action is in the best interests of Parent Borrower and its Subsidiaries and if not materially disadvantageous to the Lenders and (iii) any Swiss Guarantor shall be the continuing may merge or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger consolidate with or consolidation)into any other Swiss Credit Party;
(b3) any Subsidiary of the Company may Dispose dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or another a Subsidiary of Parent Borrower that is not a Guarantor; provided, that such Investment in such Subsidiary is permitted by Section 6.6;
(4) so long as (x) no Default exists or would result therefrom, (y) Parent Borrower and its Subsidiaries shall be in compliance with the Companyfinancial covenant set forth in Section 6.7 (b) on a pro forma basis after giving effect thereto as of the last day of the Test Period most recently ended (as determined in accordance with Section 1.10) and (z) if in connection with an Investment under Section 6.6, the requirements thereof shall be complied with, any Borrower may merge with any other Person; provided that (i) in the case of a merger involving Parent Borrower, Parent Borrower shall be the continuing or surviving corporation or (ii) in the case of a merger involving a Subsidiary Borrower, if the transferor Person formed by or surviving any such merger or consolidation is not such Subsidiary Borrower (any such Person, the “Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws of: (x) in the case of the Japanese Subsidiary Borrower, Japan and (y) in the case of the Swiss Subsidiary Borrower, Switzerland, (B) the Successor Borrower shall expressly assume all the obligations of such a transaction Borrower under this Agreement and the other Credit Documents to which such Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to Administrative Agent, (C) in the case of any such transaction involving Swiss Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect Borrower, each Swiss Guarantor, unless it is the other party to such Dispositionmerger or consolidation, then shall have by a supplement to the transferee must Swiss Guaranty confirmed that its guarantee of the Swiss Obligations shall apply to the Successor Borrower’s obligations under this Agreement, and (D) such Borrower shall have delivered to Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or consolidation and such supplement to this Agreement or any Collateral Document comply with this Agreement; provided, further, that if the foregoing are satisfied, the Successor Borrower will succeed to, and be the Company or a Subsidiary Guarantorsubstituted for, such Borrower under this Agreement;
(c5) Dispositions so long as no Default exists or would result therefrom, any Subsidiary (other than a Subsidiary Borrower) may merge or consolidate with any other Person in order to effect an Investment permitted pursuant to Section 6.6;
(6) the Acquisition may be consummated; and
(7) so long as no Default exists or would result therefrom, a merger, dissolution, liquidation, consolidation or Asset Sale, the purpose of which is to effect an Asset Sale permitted pursuant to Section 6.8(b). Notwithstanding the foregoing, Parent Borrower and its Subsidiaries shall not merge or consolidate with Holdings or any direct or indirect parent of Holdings.
(b) No Credit Party shall, nor shall it permit any of its Subsidiaries to, make or consummate an Asset Sale, other than:
(1) any disposition of Cash Equivalents or obsolete or worn out equipment, whether now owned vehicles or hereafter acquiredother similar assets in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale or no longer used in the ordinary course of business (excluding any dispositions by operations or divisions discontinued or to be discontinued);
(2) the disposition of all or substantially all of the assets of a Credit Party in a manner permitted pursuant to Section 6.8(a);
(3) the making of any Restricted Junior Payment that is permitted to be made, and is made, under Section 6.4 hereof or the making of any Investment permitted under Section 6.6 hereof;
(4) (A) any (i) disposition of property or assets by Parent Borrower or a Guarantor Subsidiary or (ii) issuance of securities by a Guarantor Subsidiary, in each case, to Parent Borrower or any Guarantor Subsidiary; and (B) any (i) disposition of property or assets by a Subsidiary that is not a Guarantor Subsidiary or (ii) issuance of Securities by a Subsidiary that is not a Guarantor Subsidiary, in each case, to Parent Borrower, any of its Wholly-Owned Subsidiaries or any Guarantor Subsidiary;
(5) to the extent allowable under Section 1031 of the Internal Revenue Code, any exchange of like property (excluding any boot thereon) for use in a Similar Business between Parent Borrower or any of its Subsidiaries and another Person with a Fair Market Value in an aggregate amount for all such exchanges from the Second Restatement Effective Date not to exceed $25,000,000;
(6) any leases, subleases, assignments, transfers, licenses or sublicenses of any real or personal property, including any Intellectual Property, in the ordinary course of business;
(d7) Dispositions any issuance or sale of property by any Subsidiary of the Company to the Company Equity Interests in, or another Subsidiary of the Company; provided that if the transferor is a Subsidiary GuarantorIndebtedness or other securities of, then the transferee must be the Company or a Subsidiary Guarantoran Unrestricted Subsidiary;
(e8) the granting of Liens not prohibited by this Agreement or foreclosures, expropriations, condemnations or similar actions with respect to assets;
(9) Investments any financing transaction with respect to property built or acquired by Parent Borrower or any Subsidiary, including sale and lease-back transactions, in each case, permitted by this Agreement;
(10) other Asset Sales; provided, that (1) the consideration received for such assets shall be in an amount at least equal to the Fair Market Value thereof, (2) with respect to any Asset Sale (or series of related Asset Sales) for a purchase price exceeding $50,000,000, no less than 75% thereof shall be paid in Cash or Cash Equivalents (which shall be deemed to include the following for purposes of this proviso: (A) any liabilities (as shown on Parent Borrower’s or such Subsidiary’s most recent balance sheet or in the footnotes thereto) of Parent Borrower or such Subsidiary, other than liabilities that are by their terms subordinated to the Loans, that are assumed by the transferee of any such assets and for which Parent Borrower and all of its Subsidiaries have been validly released by all creditors in writing, and (B) any securities, notes or other obligations or assets received by Parent Borrower or such Subsidiary from such transferee that are converted by Parent Borrower or such Subsidiary into Cash Equivalents (to the extent of the Cash Equivalents received) within 180 days following the closing of such Asset Sale), and (3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 10.22.14(a) and to the extent that the Net Asset Sale Proceeds in any Fiscal Year exceed $150,000,000, all Net Asset Sale Proceeds in excess of such amount shall be applied to prepay the Terms Loans in accordance with Section 2.14(a) and may not be reinvested in the business of Parent Borrower and its Subsidiaries;
(11) any surrender or waiver of contract rights or the settlement, release or surrender of contract rights or other litigation claims in the ordinary course of business;
(12) a Designated Sale and Leaseback Transaction;
(13) the voluntary unwinding of any Hedge Agreements; and
(f14) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event dispositions of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent and its Subsidiaries shall be accounts receivable in compliance, on a pro forma basis, connection with the provisions of Section 10.11; and
(iii) collection or compromise thereof in the event ordinary course of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 or any other Financing Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date thereof and immediately after giving effect thereto, except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 and (B) the provisions of Sections 10.19(b) and (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the Company, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom or (ii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State of the United States of America or the District of Columbiabusiness.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (IMS Health Holdings, Inc.), Credit and Guaranty Agreement (IMS Health Holdings, Inc.)
Fundamental Changes; Dispositions. The Parent and the Company will not, and will not permit any of their respective Subsidiaries to, mergeMerge, dissolve, liquidate, consolidate with or into another Person, make any Disposition or, in the case of any Subsidiary of the Parent, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except:
(a) any Subsidiary of the Company Borrower may merge or consolidate with (i) the CompanyBorrower, provided that the Company Borrower shall be the continuing or surviving Person and or (ii) any one or more other Subsidiaries of the CompanyBorrower, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company Borrower that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(b) any Subsidiary of the Company Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company Borrower or another Subsidiary of the CompanyBorrower; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company Borrower or a Subsidiary Guarantor;
(c) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of business;
(d) Dispositions of property by any Subsidiary of the Company Borrower to the Company Borrower or another Subsidiary of the CompanyBorrower; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company Borrower or a Subsidiary Guarantor;
(e) Investments permitted by Section 10.27.02; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of Section 10.117.11; and
(iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 Article V or any other Financing Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be are true and correct in all material respects on and as of the date thereof and immediately after giving effect thereto, except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.57.05, the representations and warranties contained in subsections (a) and (b) of Section 5.5 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 6.01 and (B) the provisions of Sections Section 10.19(b) and or (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company Borrower be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the CompanyBorrower, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom or (ii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State of the United States of America or the District of Columbia.
Appears in 2 contracts
Samples: Credit Agreement (Empire State Realty OP, L.P.), Term Loan Agreement (Empire State Realty OP, L.P.)
Fundamental Changes; Dispositions. The Parent and the Company will not, and will not permit any of their respective Subsidiaries to, mergeMerge, dissolve, liquidate, consolidate with or into another Person, make any Disposition (including, in each case, pursuant to a Division) or, in the case of any Subsidiary of the Parent, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except:
(a) any Subsidiary of the Company Borrower may merge or consolidate with (i) the CompanyBorrower, provided that the Company Borrower shall be the continuing or surviving Person and or (ii) any one or more other Subsidiaries of the CompanyBorrower, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company Borrower that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(b) any Subsidiary of the Company Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation liquidation, pursuant to a Division or otherwise) to the Company Borrower or another Subsidiary of the CompanyBorrower; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company Borrower or a Subsidiary Guarantor; and provided, further, that if any Subsidiary Guarantor consummates a Division, the Borrower must comply with applicable obligations under Section 6.12 with respect to each Division Successor;
(c) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of business;
(d) Dispositions of property by any Subsidiary of the Company Borrower to the Company Borrower or another Subsidiary of the CompanyBorrower; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company Borrower or a Subsidiary Guarantor; and provided, further, that if any Subsidiary Guarantor consummates a Division, the Borrower must comply with applicable obligations under Section 6.12 with respect to each Division Successor;
(e) Investments permitted by Section 10.27.02; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of Section 10.117.11; and
(iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 Article V or any other Financing Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be are true and correct in all material respects (or, if qualified by materiality, Material Adverse Effect or similar language, in all respects) on and as of the date thereof and immediately after giving effect thereto, except (1) to the extent that where such representations and warranties specifically refer expressly relate to an earlier date, in which case they such representations and warranties shall be have been true and correct in all material respects (or, if qualified by materiality, Material Adverse Effect or similar language, in all respects) as of such earlier date, (2) any representation or warranty date and except that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.57.05, the representations and warranties contained in subsections (a) and (b) of Section 5.5 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 6.01 and (B) the provisions of Sections Section 10.19(b) and or (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfiedsatisfied (and, in the case of any such Disposition that is effected pursuant to a Division, the Borrower must, as and to the extent set forth in subsections (b) and (d) of this Section 7.05, comply with applicable obligations under Section 6.12 with respect to each Division Successor). Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company Borrower be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the CompanyBorrower, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom therefrom, (ii) consummate a Division or (iiiii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State of the United States of America or the District of Columbia.
Appears in 2 contracts
Samples: Credit Agreement (Empire State Realty OP, L.P.), Credit Agreement (Empire State Realty OP, L.P.)
Fundamental Changes; Dispositions. The Parent and the Company will notWind-up, and will not permit any of their respective Subsidiaries toliquidate or dissolve, or merge, dissolve, liquidate, consolidate or amalgamate with or into another Person, make any Disposition or, in the case of any Subsidiary of the Parent, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except:
(a) or make any Subsidiary Disposition, whether in one transaction or a series of the Company may merge or consolidate with (i) the Companyrelated transactions, provided that the Company shall be the continuing or surviving Person and or (ii) any one or more other Subsidiaries of the Company, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(b) any Subsidiary of the Company may Dispose of all or substantially all any part of its assets (upon voluntary liquidation business, property or otherwise) to the Company or another Subsidiary of the Company; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company or a Subsidiary Guarantor;
(c) Dispositions of obsolete or worn out equipmentassets, whether now owned or hereafter acquired, in the ordinary course acquired or permit any of business;
(d) Dispositions of property by its Subsidiaries to do any Subsidiary of the Company to the Company or another Subsidiary of the Companyforegoing; provided that if the transferor is a Subsidiary Guarantorprovided, then the transferee must be the Company or a Subsidiary Guarantor;
(e) Investments permitted by Section 10.2; and
(f) mergershowever, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) any wholly-owned Subsidiary of the Borrower may be merged, consolidated, amalgamated or liquidated into the Borrower or another wholly-owned Subsidiary of the Borrower (other than IVS and its Subsidiaries); provided that (A) no other provision of this Agreement would be violated thereby, (B) the Borrower gives the Agents at least three (3) Business Days' prior written notice of such merger, amalgamation, liquidation, consolidation or amalgamation accompanied by true, correct and complete copies of all material agreements, documents and instruments relating to such merger, amalgamation, consolidation or amalgamation, including, but not limited to, the certificate or certificates of merger or amalgamation to be filed with each appropriate Secretary of State (with a copy as filed promptly after such filing), (C) no Default or Event of Default has shall have occurred and is be continuing either before or immediately before and after giving effect to such transaction, and (D) the Lenders' rights in any Collateral, including, without limitation, the existence, perfection and priority of any Lien thereon, are not adversely affected by such merger, amalgamation, liquidation, consolidation or amalgamation;
(ii) immediately upon giving effect thereto, [reserved];
(iii) the Parent Borrower and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of Section 10.11may make Permitted Dispositions; and
(iiiiv) in any of the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner Borrower's Subsidiaries (other than IVS and its Subsidiaries) may wind-up, liquidate, or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: dissolve if (A) the representations and warranties contained governing body of such Subsidiary shall determine that the preservation thereof is no longer desirable in Section 5 or any other Financing Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as the conduct of the date thereof business of the Borrower and immediately after giving effect theretoits Subsidiaries, except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 and (B) the provisions value of Sections 10.19(b) such Subsidiary is immaterial to the Borrower, its Subsidiaries, and (c) the Lenders or the assets of such Subsidiary are distributed to the Borrower or a wholly-owned Subsidiary of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the Company, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom or (ii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State of the United States of America or the District of ColumbiaBorrower.
Appears in 1 contract
Samples: Financing Agreement (Grindrod Shipping Holdings Ltd.)
Fundamental Changes; Dispositions. The Parent and (a) Neither the Company will notBorrower nor any Credit Facility Guarantor shall, and will not permit any of their respective Subsidiaries toafter the Closing Date, merge, dissolve, liquidate, consolidate with or into another Person, make or wind up, liquidate or dissolve, or enter into any Disposition oragreement to do any of the foregoing; and, without the prior written consent of the Administrative Agent (and the Required Lenders), neither the Borrower nor any Credit Facility Guarantor shall (i) directly or indirectly transfer or Dispose of any interest in any Borrowing Base Property or any part thereof (including any interest in the Borrower or any Credit Facility Guarantor), or (ii) directly or indirectly grant any Lien on any direct interest in any Borrowing Base Property or any part thereof, whether voluntarily or involuntarily (including any interest in the Borrower or any Credit Facility Guarantor), or (iii) except as described in clause (e) of the definition of "Permitted Liens", enter into any easement or other agreement granting rights in or restricting the use or development of any Borrowing Base Property except for easements and other agreements which, in the case reasonable opinion of the Administrative Agent, have no Material Adverse Effect; provided, however, that, the foregoing restrictions shall not apply with respect to:
(A) transfers of any Borrowing Base Property to the Borrower, any Credit Facility Guarantor or any Controlled Subsidiary that becomes a Credit Facility Guarantor (provided that, (x) prior to such transfer, the Controlled Subsidiary (if not a Credit Facility Guarantor) becomes a Credit Facility Guarantor in accordance with Section 6.18 and does not have any Indebtedness that would be in violation of Section 7.03 or Liens on its Property that would be in violation of Section 7.01; (y) the Borrower delivers, or causes to be delivered, to the Administrative Agent, assumptions by such Controlled Subsidiary of the obligations of transferor under the Deed of Trust for such Borrowing Base Property, an Environmental Indemnity Agreement with respect to such Borrowing Base Property and endorsements to the Title Policy for the transferred Borrowing Base Property, confirming the fee or leasehold (as applicable) ownership of such Borrowing Base Property in the transferee and the Administrative Agent's first priority Lien therein (subject only to Permitted Title Encumbrances); and (z) the Administrative Agent is satisfied that the priority of the Administrative Agent's Lien in such Borrowing Base Property to secure the transferee's Guaranty is not impaired);
(B) transfers of any direct Equity Interests in the Borrower or any Credit Facility Guarantor (or their respective general partner, managing member or non-member manager), as long as (w) the rights of the Administrative Agent and the Lenders under the Loan Documents are not impaired, (x) the Lien of the Administrative Agent on the Collateral is not impaired, (y) such transfer does not cause the Borrower or any Credit Facility Guarantor to cease being a Controlled Subsidiary; and (z) such transfer does not result in a Change of Control;
(C) entering into Approved Leases or the granting of Liens expressly permitted by the Loan Documents;
(D) Dispositions of Borrowing Base Properties that are released pursuant to Section 2.16(c) and (d);
(E) Dispositions of Excluded Properties;
(F) any other transfers expressly permitted by the Loan Documents; and
(G) any of the following as long as long as the Borrower or any Credit Facility Guarantor continues to be a Controlled Subsidiary, no Change of Control results therefrom and the Property Manager of the Borrowing Base Properties continues to be an entity described in clause (a) or (b) of the definition of "Property Manager" or is otherwise a manager or leasing agent reasonably approved by the Administrative Agent: (1) any Disposition, pledge or issuance (whether through public offerings, private placements or other means) of shares or Equity Interests in the REIT or the Operating Partnership; (2) any conversion into securities of the REIT, of partnership units or other Equity Interests of the Operating Partnership; (3) any Disposition, pledge or issuance of any Equity Interests in any Subsidiary of the Parent, issue, sell REIT or otherwise Dispose of the Operating Partnership (other than the Borrower or any of such Subsidiary’s Credit Facility Guarantor) owning any direct or indirect Equity Interests to in any Person, except:
Loan Party; (a4) any Subsidiary of merger, consolidation, dissolution, conversion, liquidation, reorganization, sale, lease or other Disposition involving any Person other than the Company may merge Borrower or consolidate with any Credit Facility Guarantor; and (i) the Company, provided that the Company shall be the continuing or surviving Person and or (ii5) any one or more other Subsidiaries of the Company, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(b) any Subsidiary of consolidation involving the Company may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or another Subsidiary of the Company; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company or a Subsidiary Guarantor;
(c) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of business;
(d) Dispositions of property by any Subsidiary of the Company to the Company or another Subsidiary of the Company; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company or a Subsidiary Guarantor;
(e) Investments permitted by Section 10.2; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of Section 10.11; and
(iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 Borrower or any other Financing Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date thereof and immediately after giving effect thereto, except (1) to the extent that such representations and warranties specifically refer to an earlier date, Credit Facility Guarantor in which case they shall be true and correct in all material respects as of the Borrower or such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 and (B) the provisions of Sections 10.19(b) and (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the CompanyFacility Guarantor, as applicable, is the sole surviving Person of such transaction entity, as long as (i) the surviving entity does not have any Liens or Indebtedness not permitted pursuant to Sections 7.01 and no Change of Control results therefrom or 7.03 hereof, (ii) engage with respect to any such merger involving the Borrower, the surviving entity continues to remain an SPE, and (iii) no other Default would arise from, or exist as a result of, such merger. With respect to any merger, consolidation, dissolution, conversion, liquidation or reorganization transaction or event described in the foregoing clauses (4) or (5) occurring with respect to the Borrower, any transaction pursuant to which it is reorganized Credit Facility Guarantor or reincorporated in any jurisdiction other than Person that controls or owns a State majority of the United States Equity Interests of America the Borrower or any Credit Facility Guarantor, the District Borrower shall notify the Administrative Agent within ten (10) Business Days of Columbiathe occurrence of such event and shall, upon request, provide to the Administrative Agent with any copies of the organizational documents of such Person (including any documents evidencing such merger, consolidation, dissolution, conversion, liquidation or reorganization).
(b) Without the prior written consent of the Administrative Agent, the Borrower will not, and will not permit any Credit Facility Guarantor to, make any modification of the terms or provisions of its Organization Documents, except: (i) modifications necessary to clarify existing provisions of such Organization Documents, (ii) modifications which would have no adverse, substantive effect on the rights or interests of the Lenders in conjunction with the Loans or under the Loan Documents, or (iii) modifications necessary to effectuate transfers to the extent expressly permitted in this Agreement. If any such modifications are made to such Organization Documents, the Borrower shall, or shall cause the applicable Credit Facility Guarantor to, deliver a copy of such modified Organization Documents to the Administrative Agent within 30 days of such modification.
Appears in 1 contract
Fundamental Changes; Dispositions. The Parent and Neither the Company Borrower nor any Required Guarantor will not, and will not permit any of their respective Subsidiaries to, merge, dissolve, liquidate, (i) consolidate or merge with or into another Person, make any Disposition or, in the case of any Subsidiary of the Parent, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except:
(a) any Subsidiary of the Company may merge or consolidate with (i) the Company, provided that the Company shall be the continuing or surviving other Person and or (ii) any sell, lease or otherwise transfer (in one transaction or more other Subsidiaries in a series of the Company, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(btransactions) any Subsidiary of the Company may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or another Subsidiary of the Companyany other Person; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company or a Subsidiary Guarantor;
(c) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of business;
(d) Dispositions of property by any Subsidiary of the Company to the Company or another Subsidiary of the Company; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company or a Subsidiary Guarantor;
(e) Investments permitted by Section 10.2; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of Section 10.11; and
(iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) (x) any Person may consolidate or merge with or into the representations Borrower in a transaction in which the Borrower is the surviving Person and warranties contained in Section 5 or any other Financing Document, or which are contained in any document furnished (y) if at any the time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date thereof and immediately after giving effect theretothereto no Default or Event of Default shall have occurred and be continuing, except (1) any Person may consolidate or merge with or into the Borrower, and the Borrower may consolidate or merge with or into any Person, as long as the surviving entity, if other than the Borrower, has an Investment Grade Rating and assumes each of the obligations of the Borrower under the Loan Documents pursuant to an agreement executed and delivered to the extent that Lenders in a form reasonably satisfactory to the Required Lenders and such representations surviving entity provides all documentation and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already other information required by its terms qualified as to regulatory authorities under applicable “materialityknow your customer”, “Material Adverse Effectbeneficial ownership” or similar language shall be true and correct in all respects as of such applicable date (anti-money laundering rules and regulations, including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer without limitation with respect to the most recent statements furnished pursuant PATRIOT Act and Beneficial Ownership Regulation, in a form reasonably satisfactory to subsections (a) and (b), respectively, of Section 7.1 and the Administrative Agent; (B) the provisions of Sections 10.19(b) and (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company be permitted to (i) merge, dissolve or liquidate any Required Guarantor may merge into or consolidate with or sell, lease or otherwise transfer all or substantially all of its assets to the (x) Borrower or (y) a Restricted Subsidiary, provided that any such merger, consolidation, sale, lease or other transfer by the Initial Guarantor pursuant to this clause (y) shall be with, into or to a Guarantor or a Restricted Subsidiary that becomes a Guarantor contemporaneously with such merger, consolidation, sale, lease or other transfer; and (C) any Required Guarantor may merge into, or consolidate with, any Person other than the Borrower or a Restricted Subsidiary if (x) such Required Guarantor is the surviving entity or (y) such other Person unless after giving effect thereto the Parent or the Company, as applicable, is the sole surviving Person of entity and becomes a Restricted Subsidiary and a Guarantor contemporaneously with such transaction and no Change of Control results therefrom merger or (ii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State of the United States of America or the District of Columbiaconsolidation.
Appears in 1 contract
Fundamental Changes; Dispositions. The Parent and the Company will not, and will not permit any of their respective Subsidiaries to, mergeMerge, dissolve, liquidate, consolidate with or into another Person, make any Disposition (including, in each case, pursuant to a Division) or, in the case of any Subsidiary of the Parent, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except:
(a) any Subsidiary of the Company Borrower may merge or consolidate with (i) the CompanyBorrower, provided that the Company Borrower shall be the continuing or surviving Person and or (ii) any one or more other Subsidiaries of the CompanyBorrower, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company Borrower that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(b) any Subsidiary of the Company Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation liquidation, pursuant to a Division or otherwise) to the Company Borrower or another Subsidiary of the CompanyBorrower; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company Borrower or a Subsidiary Guarantor; and provided, further, that if any Subsidiary Guarantor consummates a Division, the Borrower must comply with applicable obligations under Section 6.12 with respect to each Division Successor;
(c) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of business;
(d) Dispositions of property by any Subsidiary of the Company Borrower to the Company Borrower or another Subsidiary of the CompanyBorrower; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company Borrower or a Subsidiary Guarantor; and provided, further, that if any Subsidiary Guarantor consummates a Division, the Borrower must comply with applicable obligations under Section 6.12 with respect to each Division Successor;
(e) Investments permitted by Section 10.27.02; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of Section 10.117.11; and
(iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 Article V or any other Financing Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be are true and correct in all material respects (or, if qualified by materiality, Material Adverse Effect or similar language, in all respects) on and as of the date thereof and immediately after giving effect thereto, except (1) to the extent that thatwhere such representations and warranties specifically refer referexpressly relate to an earlier date, in which case they theysuch representations and warranties shall be behave been true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms terms(or, if qualified as to “by materiality”, “Material Adverse Effect” or similar language shall be true and correct correct, in all respects respects) as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) 3)and except that for purposes of this Section 10.57.05, the representations and warranties contained in subsections (a) and (b) of Section 5.5 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 6.01 and (B) the provisions of Sections Section 10.19(b) and or (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfiedsatisfied (and, in the case of any such Disposition that is effected pursuant to a Division, the Borrower must, as and to the extent set forth in subsections (b) and (d) of this Section 7.05, comply with applicable obligations under Section 6.12 with respect to each Division Successor). Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company Borrower be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the CompanyBorrower, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom therefrom, (ii) consummate a Division or (iiiiiii ) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State of the United States of America or the District of Columbia.
Appears in 1 contract
Fundamental Changes; Dispositions. The Parent and (i) Wind-up, liquidate or dissolve, or merge, consolidate or amalgamate with any Person, including by means of a “plan of division” under the Delaware Limited Liability Company will notAct or any comparable transaction under any similar law, and will not or permit any of their respective its Subsidiaries toto do any of the foregoing, mergeunless such Subsidiary is an Immaterial Subsidiary at the time of wind-up, dissolveliquidation or dissolution and the assets thereof, liquidateif any, consolidate with are contributed to a Loan Party or into another Person, make any Disposition or, in the case of any wholly-owned Subsidiary of a Loan Party at the Parent, issue, sell or otherwise Dispose of any time of such Subsidiary’s Equity Interests to any Personwind-up, except:liquidation or dissolution; provided, however, that
(a) any Subsidiary of the Company Borrower may merge or consolidate with be merged into another Person to consummate the De-SPAC Mergers (i) the Company, “Successor Borrower”); provided that the Company shall be the continuing or surviving Person and or (ii) any one or more other Subsidiaries of the Company, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(b) any Subsidiary of the Company may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or another Subsidiary of the Company; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company or a Subsidiary Guarantor;
(c) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of business;
(d) Dispositions of property by any Subsidiary of the Company to the Company or another Subsidiary of the Company; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company or a Subsidiary Guarantor;
(e) Investments permitted by Section 10.2; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided thatentity:
(iA) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with an entity organized or existing under the provisions of Section 10.11; and
(iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 or any other Financing Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date thereof and immediately after giving effect thereto, except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 and (B) the provisions of Sections 10.19(b) and (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the Company, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom or (ii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State laws of the United States of America America, any State thereof or the District of Columbia.,
(B) the Successor Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto reasonably satisfactory to the Administrative Agent and the Collateral Agent,
(C) each Guarantor, unless it is the Successor Borrower , shall have confirmed that its Guaranty shall apply to the Successor Borrower’s obligations under the Loan Documents to at least the same extent as if applied to those of the previous Borrower,
(D) each Guarantor, unless it is the Successor Borrower or the other party to such merger, consolidation or amalgamation, shall have, by a supplement to the Security Agreement and other applicable Security Documents to which it is a party, confirmed that its obligations thereunder shall apply to its guarantee of the Successor Borrower’s obligations under the Loan Documents to at least the same extent as if applied to those of the previous Borrower, and
(E) the Borrower shall have delivered to the Administrative Agent (A) a certificate of an Authorized Officer of the Borrower or the Successor Borrower, as the case may be, to the effect that such consolidation, merger, amalgamation or transfer and such joinder agreement comply with this Agreement and (B) a legal opinion to the effect that such joinder agreement and the agreements so joined are legal and binding agreements enforceable against the Successor Borrower, together with customary security interest opinions; provided that in giving a legal opinion, (x) counsel may rely on such certificate as to any matters of fact and (y) legal opinions consistent with the type and scope of the legal opinions delivered on the Effective Date shall be satisfactory to the Agents and the Lenders, (b) the Loan Parties and their Subsidiaries may consummate the Permitted Reorganization and the De-SPAC Transactions,
Appears in 1 contract
Fundamental Changes; Dispositions. The Parent and the Company will Holdings shall not, and will not nor shall it permit any of their respective Subsidiaries toSubsidiary to merge, mergeamalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) any of its assets (whether now owned or hereafter acquired) to or in favor of any Person, or make any Disposition oror enter into any agreement to make any Disposition, in the case of any Subsidiary of the Parent, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, exceptexcept that:
(ai) (A) any Subsidiary of the Company may merge or consolidate amalgamate with (ix) the CompanyBorrower, provided that the Company Borrower shall be the continuing or surviving Person and or (iiy) any one or more other Subsidiaries of the CompanySubsidiary that is a Loan Party, provided that if any the Subsidiary Guarantor is merging with another Subsidiary of the Company that is not a Subsidiary Guarantor, such Subsidiary Guarantor Loan Party shall be the continuing or surviving Person Person, and (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(bB) any Subsidiary of Borrower that is not a Loan Party may be merged or amalgamated with or into another Subsidiary of the Company Borrower that is not a Loan Party;
(A) any Loan Party other than Holdings or the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company Borrower or to another Loan Party (other than Holdings) and (B) any Subsidiary of the Company; provided Borrower that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect not Loan Party may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to such Disposition, then the transferee must be the Company or a Subsidiary Guarantoranother Subsidiary;
(ciii) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of businessPermitted Dispositions;
(div) the Borrower or any of its Subsidiaries may make Dispositions of property by any Subsidiary of the Company newspaper assets (including one or more Subsidiaries) to the Company or another Subsidiary of the Company; provided extent exchanged for other newspaper assets (including any Person that if the transferor is becomes a Subsidiary Guarantoras a result of such exchange) so long as, then the transferee must be the Company or a Subsidiary Guarantor;
(e) Investments permitted by Section 10.2; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent portion of Consolidated EBITDA attributable to such Disposed assets, when added to that portion of Consolidated EBITDA attributable to all other assets Disposed of in reliance on this subsection (iv), does not exceed 10% of Consolidated EBITDA as set forth in the most recent financial information delivered to the Administrative Agent pursuant to Section 6.01(a) or (b);
(v) other Dispositions so long as (x) no Default or Event of Default exists or would result therefrom and its Subsidiaries (y) such Disposition shall be (A) for fair market value and (B) at least 75% of the proceeds thereof shall be in compliance, on cash or Cash Equivalents; provided that Dispositions for consideration having a pro forma basis, with value of up to $5,000,000 in any fiscal year of Holdings may be undertaken without satisfying the provisions of requirement in clause (B) above;
(vi) Investments otherwise permitted by Section 10.117.10; and
(iiivii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 or any other Financing Document, or which are contained in any document furnished at any time under or Dispositions in connection herewith with a joint production arrangement of equipment to a joint venture entity permitted under Section 7.10 in exchange for Equity Interests in or therewith, shall be true and correct in all material respects on and as Indebtedness of the date thereof and immediately joint venture entity so long as within 10 days after giving effect theretosuch Disposition (or such longer period agreed to by the Collateral Agent), except (1) the Borrower’s or the applicable Subsidiary’s Equity Interests or Indebtedness in such entity are pledged to the extent that such representations and warranties specifically refer to an earlier dateCollateral Agent, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in for the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 and (B) the provisions of Sections 10.19(b) and (c) benefit of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the Company, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom or (ii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State of the United States of America or the District of ColumbiaSecured Parties.
Appears in 1 contract
Samples: Revolving Credit Agreement (Postmedia Network Canada Corp.)
Fundamental Changes; Dispositions. The Parent and the Company will not, and will not permit any of their respective Subsidiaries to, mergeMerge, dissolve, liquidate, consolidate with or into another Person, make any Disposition or, in the case of any Subsidiary of the ParentREIT, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except:
(a) any Subsidiary of the Company Borrower may merge or consolidate with (i) the CompanyBorrower, provided that the Company Borrower shall be the continuing or surviving Person and or (ii) any one or more other Subsidiaries of the CompanyBorrower, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company Borrower that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(b) any Subsidiary of the Company Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company Borrower or another Subsidiary of the CompanyBorrower; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company Borrower or a Subsidiary Guarantor;
(c) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of businessbusiness or in accordance with past practice;
(d) Dispositions of property by any Subsidiary of the Company Borrower to the Company Borrower or another Subsidiary of the CompanyBorrower; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company Borrower or a Subsidiary Guarantor;
(e) Investments permitted by Section 10.27.02; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent REIT and its Subsidiaries shall be in compliance, on a pro forma basisPro Forma Basis, with the provisions of Section 10.11; and7.11;
(iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 Article V or any other Financing Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be are true and correct in all material respects on and as of the date thereof and immediately after giving effect thereto, except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.57.05, the representations and warranties contained in subsections (a) and (b) of Section 5.5 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections clauses (a) and (b), respectively, of Section 7.1 and 6.01; and
(Biv) in the event of the Disposition of an Unencumbered Eligible Property for which an Unencumbered Property Subsidiary is a Subsidiary Guarantor, or the Disposition, dissolution or liquidation of any Unencumbered Property Subsidiary of an Unencumbered Eligible Property, the provisions of Sections 10.19(bSection 11.19(b) and or (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company Borrower be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the Company, as applicable, Borrower is the sole surviving Person of such transaction and no Change of Control results therefrom or (ii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State state of the United States of America or the District of Columbia.
Appears in 1 contract
Fundamental Changes; Dispositions. The Parent and the Company will not, and will not permit any of their respective Subsidiaries to, merge, dissolve, liquidate, consolidate with or into another Person, make any Disposition or, in the case of any Subsidiary of the Parent, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except:
(a) any Subsidiary of the Company may merge or consolidate with (i) the Company, provided that the Company shall be the continuing or surviving Person and or and/or (ii) any one or more other Subsidiaries of the Company, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(b) any Subsidiary of the Company may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or another Subsidiary of the Company; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company or a Subsidiary Guarantor;
(c) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of business;
(d) Dispositions of property by any Subsidiary of the Company to the Company or another Subsidiary of the Company; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company or a Subsidiary Guarantor;
(e) Investments permitted by Section 10.2; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of Section 10.11; and
(iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 or any other Financing Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date thereof and immediately after giving effect thereto, except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 and (B) the provisions of Sections 10.19(b) and (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the Company, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom or therefrom, (ii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State of the United States of America or the District of Columbia, or (iii) consummate a Division.
Appears in 1 contract
Samples: Note Purchase Agreement (Empire State Realty OP, L.P.)
Fundamental Changes; Dispositions. The Parent and the Company will not, and will not permit any of their respective Subsidiaries to, mergeMerge, dissolve, liquidate, consolidate or amalgamate with or into another Person, make any Disposition orexcept that, in the case of any Subsidiary of the Parent, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except:
(a) the Parent may merge or consolidate with any of its Restricted Subsidiaries (other than either Borrower) provided that the Parent is the continuing or surviving corporation, (b) the Company may merge or consolidate with any of its Restricted Subsidiaries (other than the Designated Borrowers) provided that the Company is the continuing or surviving corporation, (c) the Merger and the Post-Closing Reorganization may each be consummated, (d) any Designated Borrower may merge or consolidate with any of its Restricted Subsidiaries (other than another Designated Borrower) provided that such Designated Borrower is the continuing or surviving corporation, (e) any Domestic Subsidiary of the Company may merge or consolidate with any other Domestic Subsidiary of the Company provided that if a Domestic Guarantor is a party to such transaction, the continuing or surviving Person is (or shall, simultaneously upon consummation of such transaction, become) a Domestic Guarantor, (f) any Foreign Subsidiary (other than a Designated Borrower) of the Company may merge or consolidate with any other Foreign Subsidiary (other than a Designated Borrower) of the Company provided that if a Foreign Guarantor is a party to such transaction, the continuing or surviving Person is (or shall, simultaneously upon consummation of such transaction, become) a Foreign Guarantor, (g) the Parent or any Restricted Subsidiary may merge with any other Person in connection with a Permitted Acquisition, provided that (i) if the Parent is a party to such transaction, the Parent is the continuing or surviving corporation, (ii) if the Company is a party to such transaction, the Company is the continuing or surviving corporation, (iii) if a Designated Borrower is a party to such transaction, such Designated Borrower is the continuing or surviving corporation and (iv) if any other Loan Party is a party to such transaction, the continuing or surviving Person is (or, if not already a Loan Party, shall, substantially concurrently with the consummation of such transaction, become) a Loan Party, (h) any Restricted Subsidiary (other than a Borrower) may dissolve, liquidate or wind up its affairs at any time, provided that such dissolution, liquidation or winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect, (i) any Restricted Subsidiary (other than a Borrower) may merge or consolidate with or into another Person, or dissolve or liquidate, in each case, solely for the purpose of effecting a Disposition expressly permitted pursuant to Section 8.05 and (j) any Restricted Subsidiary may merge or consolidate with any other Person in order to effectuate an Investment expressly permitted pursuant to Section 8.02 provided that (i) if such Restricted Subsidiary is (x) a Domestic Loan Party, the continuing or surviving Person is or shall become a Domestic Loan Party (and if such Subsidiary is the Company, provided that the Company shall be the continuing or surviving Person) or (y) a Foreign Loan Party, the continuing or surviving Person is or shall become a Loan Party (and if such Subsidiary is a Designated Borrower, such Designated Borrower shall be the continuing or surviving Person), and (ii) if the continuing or surviving Person shall be a Restricted Subsidiary (other than an Immaterial Subsidiary), such Person, together with each of its Restricted Subsidiaries (if any), shall have complied with Section 7.12 within the timeframes specified therein. 8.05 Dispositions. Make any one Disposition except:
(a) any Restricted Subsidiary may be merged, consolidated or more amalgamated with or into the Parent or any other Subsidiaries of the Company, Restricted Subsidiary; provided that (i) in the case of any such merger, consolidation or amalgamation with or into a Borrower, (A) such Borrower shall be the continuing or surviving Person or a Person that continues as an amalgamated corporation or (B) if the Person formed by or surviving any Subsidiary Guarantor is merging with another Subsidiary such merger, consolidation or amalgamation (including any immediate and successive mergers, consolidations or amalgamations of the Company that entities) is not a Subsidiary Borrower (any such Person succeeding such Borrower after giving effect to such transaction or transactions, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the jurisdiction of organization of such Borrower or a political subdivision thereof, (y) the Successor Borrower shall expressly assume the Obligations of such Borrower, as applicable, in a manner reasonably satisfactory to the Administrative Agent and the Parent shall have provided at least 30 days’ notice of such transaction to the Lenders and shall have provided at least three Business Days prior to the date of such transaction all information requested by any Lender at least 10 business days prior to such transaction to comply with applicable “know your customer” requirements and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such Subsidiary merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, such Borrower under this Agreement and the other Loan Documents and (ii) in the case of any such merger, consolidation or amalgamation with or into any Guarantor, either (x) a Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Guarantor in a manner reasonably satisfactory to the Administrative Agent or (unless such Subsidiary Guarantor ceases to y) the relevant transaction shall be a Subsidiary Guarantor treated as the result of such merger or consolidation)an Investment and otherwise be made in compliance with Section 8.02;
(b) Dispositions (including of Equity Interests) among the Parent and/or any Restricted Subsidiary of the Company may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or another Subsidiary of the Company); provided that any such Disposition by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (as determined by such Person in good faith) or (ii) treated as an Investment and otherwise be made in compliance with Section 8.02 (other than on reliance of clause (j) thereof);
(i) the liquidation or dissolution of any Restricted Subsidiary (other than a Borrower) if the transferor Parent determines in good faith that such liquidation or dissolution is in the best interests of the Parent, is not materially disadvantageous to the Lenders, and the Parent or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; (ii) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 8.05 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 8.02 (other than clause (j) thereof); provided that (i) in the case of any such merger, consolidation or amalgamation with or into the Parent or a transaction Borrower, (A) the Parent or such Borrower shall be the continuing or surviving Person or a Person that continues as an amalgamated corporation or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation (including any immediate and successive mergers, consolidations or amalgamations of entities) is a Subsidiary Guarantor that will remain a Subsidiary Guarantor not the Parent or such Borrower (any such Person succeeding to the Parent or such Borrower after giving effect to such Dispositiontransaction or transactions, then the transferee must “Successor Person”), (x) the Successor Person shall be an entity organized or existing under the Company law of the jurisdiction of organization of the Parent or such Borrower or a Subsidiary Guarantor;
political subdivision thereof, (cy) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of business;
(d) Dispositions of property by any Subsidiary Successor Person shall expressly assume the Obligations of the Company to the Company Parent or another Subsidiary of the Company; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company or a Subsidiary Guarantor;
(e) Investments permitted by Section 10.2; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of Section 10.11; and
(iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 or any other Financing Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date thereof and immediately after giving effect thereto, except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 and (B) the provisions of Sections 10.19(b) and (c) of the Bank Credit Agreement (as in effect on the date hereof)Borrower, as applicable, shall be satisfied. Notwithstanding anything in a manner reasonably satisfactory to the contrary contained hereinAdministrative Agent and the Parent shall have provided at least 30 days’ notice of such transaction to the Lenders and shall have provided at least three Business Days prior to the date of such transaction all information requested by any Lender at least 10 business days prior to such transaction to comply with applicable “know your customer” requirements and (z) except as the Administrative Agent may otherwise agree, in no event each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Guaranty and the other Loan Documents; it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Person will succeed to, and be substituted for, the Parent or the Company be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the Companysuch Borrower, as applicable, is under this Agreement and the sole surviving Person other Loan Documents and (iii) the Parent or any Restricted Subsidiary may be converted into another form of entity, in each case, so long as such transaction and no Change of Control results therefrom or (ii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State conversion does not adversely affect the value of the United States of America Guaranty or the District of Columbia.Collateral, taken as a whole;
Appears in 1 contract
Samples: Incremental Joinder & First Amendment to Credit Agreement (SS&C Technologies Holdings Inc)
Fundamental Changes; Dispositions. (a) The Parent Borrower will not, and will not permit any Material Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, consummate a Division as the Company Dividing Person or sell, transfer, lease or otherwise dispose of (in one transaction or a series of transactions) all or any substantial part of its assets, or all or substantially all of the stock of any of its Material Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Subsidiary may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary so long as, in the event that either such Subsidiary is a Guarantor, the surviving entity is a Guarantor or becomes a Guarantor concurrently with such merger, (iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary so long as, in the event that the Subsidiary selling, transferring, leasing or otherwise disposing such assets is a Guarantor, the entity to which it sells, transfers, leases or otherwise disposes of its assets is the Borrower or a Guarantor or becomes a Guarantor concurrently with such asset sale, (iv) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary may merge into or consolidate with any Person in connection with a Permitted Acquisition so long as, in the event that such Subsidiary is a Guarantor, the surviving entity is a Guarantor or becomes a Guarantor concurrently with such merger or consolidation; provided that any such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless also permitted by Section 6.04, (vi) any Subsidiary may consummate a Disposition permitted by Section 6.03(c) and (vii) any Subsidiary that is a limited liability company may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time so long as, in the case of a Division pursuant to which the Dividing Person is a Guarantor, any such Subsidiaries which hold such assets upon the consummation of such Division are Guarantors or become Guarantors concurrently with such Division.
(b) The Borrower will not, and will not permit any of their respective its Subsidiaries to, mergeengage to any material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related, dissolveancillary or complementary thereto (including related, liquidatecomplementary, consolidate with synergistic or into another Personancillary technologies in which the Borrower and its Subsidiaries are currently engaged).
(c) The Borrower will not, nor will it permit any Subsidiary to, make any Disposition orexcept:
(i) Dispositions of surplus, obsolete, used or worn out property or other property that, in the case business judgement of the Borrower, is (A) no longer used or useful in the business of the Borrower or its Subsidiaries, or (B) otherwise economically impracticable or not commercially reasonable to maintain;
(ii) (A) Dispositions (including non-exclusive licenses) of inventory and goods in the ordinary course of business (including on an intercompany basis) and (B) the leasing or subleasing of real property (x) in the ordinary course of business and (y) which do not materially interfere with the business of the Borrower and its Subsidiaries;
(iii) Dispositions of equipment or real property for fair market value to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;
(iv) Dispositions of property by (A) the Borrower to any other Loan Party and by any Subsidiary of the Parent, issue, sell Borrower to the Borrower or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, except:
other Loan Party and (aB) any Subsidiary of the Company may merge or consolidate with (i) the Company, provided that the Company shall be the continuing or surviving Person and or (ii) any one or more other Subsidiaries of the Company, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company Borrower that is not a Loan Party to any other Subsidiary Guarantor, such Subsidiary Guarantor shall be of the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be Borrower that is not a Subsidiary Guarantor as the result of such merger or consolidation)Loan Party;
(bv) any Subsidiary of the Company may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or another Subsidiary of the Company; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such DispositionDispositions permitted by Sections 6.02, then the transferee must be the Company or a Subsidiary Guarantor6.04 and 6.06;
(cvi) Dispositions of obsolete overdue accounts receivable solely in connection with the collection or worn out equipment, whether now owned compromise thereof;
(vii) Dispositions for fair market value pursuant to operating leases (not in connection with any sale and leaseback transactions or hereafter acquired, other Capital Lease Obligations) entered into in the ordinary course of business;
(dviii) Dispositions of property by any Subsidiary of the Company and assets subject to the Company or another Subsidiary of the Company; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company or a Subsidiary GuarantorCasualty Events;
(eix) Investments permitted by Section 10.2Dispositions of cash and cash equivalents in the ordinary course of business; and
(fx) mergers, dissolutions, liquidations, consolidations or Dispositions by Borrower and any Subsidiary not otherwise permitted aboveunder this Section 6.03(c); provided that:provided, that (A) the Borrower or the applicable Subsidiaries shall receive fair market value for the assets subject to such Disposition; (B) at the time of such Disposition, no Default shall exist or would result from such Disposition; (C) the Borrower or the applicable Subsidiaries shall receive not less than 75% of the consideration payable in respect of such Disposition in the form of cash or cash equivalents; and (D) the aggregate fair market value of all property Disposed of in reliance on this subclause (x) in any fiscal year shall not exceed the greater of (x) $62,500,000 and (y) 2.5% of Total Assets determined at the time of the consummation of such Disposition as of the last day of the most recently ended fiscal quarter for which financial statements have been (or were required to be) delivered pursuant to Section 5.01(a) or (b), as applicable;
(xi) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
(xii) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof, or as part of any bankruptcy or similar proceeding;
(xiii) Dispositions and/or terminations of, or constituting, leases, subleases, licenses, sublicenses or cross-licenses (including the provision of software under any open source license), the Dispositions or terminations of which (i) no Event do not materially interfere with the business of Default has occurred the Borrower and is continuing immediately before its Subsidiaries and after such transaction(ii) are made in the ordinary course of business;
(iixiv) immediately upon giving effect theretoany expiration of any option agreement in respect of real or personal property;
(xv) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions ordinary course of Section 10.11business; and
(iiixvi) the termination, unwinding or other disposition of Swap Agreements in the event ordinary course of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 or any other Financing Documentbusiness; provided that, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date thereof and immediately after giving effect thereto, except (1) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 and (B) the provisions of Sections 10.19(b) and (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company be permitted to none of clauses (i) merge, dissolve through (xv) of this Section 6.03(c) shall permit the Disposition of any asset (or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the Company, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom or (ii) engage exclusive license in any transaction pursuant asset) that is material to which it is reorganized the business or reincorporated in any jurisdiction other than a State operations of the United States of America or Borrower and its Subsidiaries taken as a whole (as reasonably determined in good faith by the District of ColumbiaBorrower) to an Unrestricted Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Masimo Corp)
Fundamental Changes; Dispositions. (a) The Parent Borrower will not, and will not permit any Subsidiary to, (x) merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, (y) sell, transfer, license, lease, enter into any sale-leaseback transactions with respect to, or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of the Company assets of the Borrower and its Subsidiaries, taken as a whole, or all or substantially all of the stock of any of its Subsidiaries (in each case, whether now owned or hereafter acquired), or (z) liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing:
(i) any Subsidiary or any other Person may merge into or consolidate with the Borrower in a transaction in which the Borrower is the surviving corporation;
(ii) any Person (other than the Borrower) may merge into or consolidate with any Subsidiary in a transaction in which the surviving entity is a Subsidiary or becomes a Subsidiary in connection with such transaction (provided that any such merger or consolidation involving a Guarantor must result in a Guarantor or a Person who becomes a Guarantor as the surviving entity);
(iii) [reserved];
(iv) (x) any Loan Party may sell, transfer, license, lease or otherwise dispose of its assets to any other Loan Party and (y) any Subsidiary that is not a Loan Party may sell, transfer, license, lease or otherwise dispose of its assets to any Loan Party or any other Subsidiary;
(v) in connection with any acquisition, any Subsidiary may merge into or consolidate with any other Person, so long as the Person surviving such merger or consolidation shall be a Subsidiary (provided that any such merger or consolidation involving a Guarantor must result in a Guarantor as the surviving entity);
(vi) any Subsidiary may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that if such Subsidiary is Loan Party, the entity receiving the assets of such Subsidiary upon such liquidation or dissolution shall also be a Loan Party; and
(vii) any Subsidiary may merge into or consolidate with any other Person in a transaction not otherwise prohibited hereunder and all or substantially all of the Equity Interests of any Subsidiary may be sold, transferred or otherwise disposed of, so long as (w) the aggregate consideration received in respect of all such mergers or consolidations, sales, transfers or other disposals pursuant to this clause (vii) shall not exceed the greater of (a) $75,000,000 and (b) 10% of Total Assets as of the date of such merger, consolidation, sale, transfer or other disposal, (x) the consideration received in respect of any such merger or consolidation, sale, transfer or other disposal pursuant to this clause (vii) shall be in an amount at least equal to the fair market value thereof, (y) no less 75% of the consideration received shall be in cash or Cash Equivalents, and (z) such Loan Party or such Subsidiary shall comply with its obligations, if any, in respect of Asset Sales under Section 2.08(e).
(b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Subsidiaries on the date of execution of this Agreement and businesses reasonably related, complementary or incidental thereto, which businesses, for the avoidance of doubt, may include or relate to, but not be limited to, the provision of data integration or analysis platforms and other software or technological solutions.
(c) The Borrower will not, and will not permit any of its Subsidiaries to, sell, lease (as lessor or sublessor), sell and leaseback or license (as licensor or sublicensor), exchange, transfer or otherwise dispose to, any Person, in one transaction or a series of transactions, any property of the Loan Parties or any of their respective Subsidiaries to(including receivables and leasehold interests), mergewhether now owned or hereafter acquired, dissolve, liquidate, consolidate with or into another Person, make any Disposition orincluding, in the case of any Subsidiary of the ParentSubsidiary, issue, sell issuing or otherwise Dispose of selling any shares of such Subsidiary’s Equity Interests to any Person, except:
(a) any Subsidiary of the Company may merge or consolidate with (i) the Company, provided that the Company shall be the continuing or surviving Person and or (ii) any one or more other Subsidiaries of the Company, provided that if any Subsidiary Guarantor is merging with another Subsidiary of the Company that is not a Subsidiary Guarantor, such Subsidiary Guarantor shall be the continuing or surviving Person (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(b) any Subsidiary of the Company may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or another Subsidiary of the Company; provided that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect to such Disposition, then the transferee must be the Company or a Subsidiary Guarantor;
(c) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of business;
(d) Dispositions of property by any Subsidiary of the Company to the Company or another Subsidiary of the Company; provided that if the transferor is a Subsidiary Guarantor, then the transferee must be the Company or a Subsidiary Guarantor;
(e) Investments permitted by Section 10.2; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided thatexcept for:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;any sale, transfer, license, lease or other disposition not constituting an Asset Sale, or an Asset Sale permitted under Section 6.03(a)(vii); and
(ii) immediately upon giving effect thereto, if at the Parent and its Subsidiaries shall be in compliance, on a pro forma basis, with the provisions of Section 10.11; and
(iii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 or any other Financing Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date thereof and immediately after giving effect theretothereto no Default shall have occurred and be continuing, except any other sale, transfer, license, lease or other disposition; provided that (1x) the consideration for such assets shall be in an amount at least equal to the extent that fair market value thereof, (y) no less 75% of the consideration received shall be in cash or Cash Equivalents and (z) such representations and warranties specifically refer to an earlier dateLoan Party or such shall comply with its obligations, if any, in which case they shall be true and correct in all material respects as respect of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (1Asset Sales under Section 2.08(e)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 and (B) the provisions of Sections 10.19(b) and (c) of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained hereinforegoing, in no event shall this Section 6.03 permit the Parent Borrower or any other Guarantor to transfer or dispose of or otherwise transfer any Material Intellectual Property or the Company be permitted Equity Interests of any Person that owns any Material Intellectual Property to any other Person other than the Borrower or any Guarantor, other than (i) mergethe non-exclusive licensing of Intellectual Property, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the Company, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom or (ii) engage in any transaction pursuant the exclusive licensing of Intellectual Property (A) with respect to which it is reorganized or reincorporated in any jurisdiction other than a State specific geographic areas outside of the United States States, (B) for specific fields of America or use outside the District existing business of Columbia.the Borrower and its Subsidiaries, (C) for specific business uses not interfering in any material respect with the existing business of the Loan Parties, taken as a whole and
Appears in 1 contract
Samples: Revolving Credit Agreement (Palantir Technologies Inc.)
Fundamental Changes; Dispositions. The Parent and the Company will Holdings shall not, and will not nor shall it permit any of their respective Subsidiaries toSubsidiary to merge, mergeamalgamate, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) any of its assets (whether now owned or hereafter acquired) to or in favor of any Person, or make any Disposition oror enter into any agreement to make any Disposition, in the case of any Subsidiary of the Parent, issue, sell or otherwise Dispose of any of such Subsidiary’s Equity Interests to any Person, exceptexcept that:
(ai) (A) any Subsidiary of the Company may merge or consolidate amalgamate with (ix) the CompanyBorrower, provided that the Company Borrower shall be the continuing or surviving Person and or (iiy) any one or more other Subsidiaries of the CompanySubsidiary that is a Loan Party, provided that if any the Subsidiary Guarantor is merging with another Subsidiary of the Company that is not a Subsidiary Guarantor, such Subsidiary Guarantor Loan Party shall be the continuing or surviving Person Person, and (unless such Subsidiary Guarantor ceases to be a Subsidiary Guarantor as the result of such merger or consolidation);
(bB) any Subsidiary of Borrower that is not a Loan Party may be merged or amalgamated with or into another Subsidiary of the Company Borrower that is not a Loan Party;
(A) any Loan Party other than Holdings or the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company Borrower or to another Loan Party (other than Holdings) and (B) any Subsidiary of the Company; provided Borrower that if the transferor in such a transaction is a Subsidiary Guarantor that will remain a Subsidiary Guarantor after giving effect not Loan Party may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to such Disposition, then the transferee must be the Company or a Subsidiary Guarantoranother Subsidiary;
(ciii) Dispositions of obsolete or worn out equipment, whether now owned or hereafter acquired, in the ordinary course of businessPermitted Dispositions;
(div) the Borrower or any of its Subsidiaries may make Dispositions of property by any Subsidiary of the Company newspaper assets (including one or more Subsidiaries) to the Company or another Subsidiary of the Company; provided extent exchanged for other newspaper assets (including any Person that if the transferor is becomes a Subsidiary Guarantoras a result of such exchange) so long as, then the transferee must be the Company or a Subsidiary Guarantor;
(e) Investments permitted by Section 10.2; and
(f) mergers, dissolutions, liquidations, consolidations or Dispositions not otherwise permitted above; provided that:
(i) no Event of Default has occurred and is continuing immediately before and after such transaction;
(ii) immediately upon giving effect thereto, the Parent and its Subsidiaries portion of Consolidated EBITDA attributable to such Disposed assets, when added to that portion of Consolidated EBITDA attributable to all other assets Disposed of in reliance on this subsection (iv), does not exceed 10% of Consolidated EBITDA as set forth in the most recent financial information delivered to the Administrative Agent pursuant to Section 6.01(a) or (b);
(v) other Dispositions so long as (w) no Default or Event of Default exists or would result therefrom, (x) after giving pro forma effect to such transaction, Holdings shall be in compliance, on a pro forma basis, compliance with the provisions covenants in Section 7.07, (y) such Disposition shall be (A) for fair market value and (B) at least 75% of the proceeds thereof shall be in cash or Cash Equivalents, and (z) all Net Cash Proceeds therefrom shall be applied as set forth in Section 10.112.03(b)(i); provided that Dispositions for consideration having a value of up to $5,000,000 in any fiscal year of Holdings may be undertaken without satisfying the requirement in clause (B) above so long as the Net Cash Proceeds of the liquidation of any such consideration is applied as set forth in Section 2.03(b)(i);
(vi) Investments otherwise permitted by Section 7.10; and
(iiivii) in the event of any Disposition of an Unencumbered Eligible Property for which a Direct Owner or an Indirect Owner is a Guarantor or a Disposition of any such Direct Owner or Indirect Owner: (A) the representations and warranties contained in Section 5 or any other Financing Document, or which are contained in any document furnished at any time under or Dispositions in connection herewith with a joint production arrangement of equipment to a joint venture entity permitted under Section 7.10 in exchange for Equity Interests in or therewith, shall be true and correct in all material respects on and as Indebtedness of the date thereof and immediately joint venture entity so long as within 10 days after giving effect theretosuch Disposition (or such longer period agreed to by the Administrative Agent), except (1) the Borrower’s or the applicable Subsidiary’s Equity Interests or Indebtedness in such entity are pledged to the extent that such representations and warranties specifically refer to an earlier dateCollateral Agent, in which case they shall be true and correct in all material respects as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in for the foregoing clause (1)) after giving effect to such qualification and (3) for purposes of this Section 10.5, the representations and warranties contained in Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 7.1 and (B) the provisions of Sections 10.19(b) and (c) benefit of the Bank Credit Agreement (as in effect on the date hereof), as applicable, shall be satisfied. Notwithstanding anything to the contrary contained herein, in no event shall the Parent or the Company be permitted to (i) merge, dissolve or liquidate or consolidate with or into any other Person unless after giving effect thereto the Parent or the Company, as applicable, is the sole surviving Person of such transaction and no Change of Control results therefrom or (ii) engage in any transaction pursuant to which it is reorganized or reincorporated in any jurisdiction other than a State of the United States of America or the District of ColumbiaSecured Parties.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Postmedia Network Canada Corp.)
